I disagree with what you say but will defend to the death your right to say it. Voltaire (1694-1778)

When Thomas Jefferson wrote the Declaration of Independence, he included in it a list of the colonists grievances with the British government. Notably absent were any complaints that the British government infringed upon the freedom of speech.

In those days, speech was as acerbic as it is today. If words were aimed at Parliament, all words were lawful. If they were aimed directly and personally at the king as Jeffersons were in the Declaration they constituted treason.

Needless to say, Jefferson and the 55 others who signed the Declaration would all have been hanged for treasonous speech had the British prevailed.

Of course, the colonists won the war, and, six years afterward, the 13 states ratified the Constitution. Two years after ratification, the Constitution was amended by adding the Bill of Rights. The first ratified amendment prohibited Congress from doing what the colonists never seriously complained about the British government doing infringing upon the freedom of speech.

James Madison, who drafted the Bill of Rights, insisted upon referring to speech as the freedom of speech, so as to emphasize that it preexisted the government. If you could have asked Madison where he believed the freedom of speech came from, hed have said it was one of the inalienable rights Jefferson wrote about in the Declaration.

Stated differently, each of the signatories of the Declaration and ratifiers of the Bill of Rights manifested in writing their unambiguous belief that the freedom of speech is a natural right personal to every human. It does not come from the government. It comes from within us. It cannot be taken away by legislation or executive command.

Yet, a mere seven years later, during the presidency of John Adams, Congress enacted the Alien and Sedition Acts, which punished speech critical of the government.

So, how could the same generation in some cases the same human beings that prohibited congressional infringement upon speech have enacted a statute that punished speech?

To some of the framers the Federalists who wanted a big government as we have today infringing upon the freedom of speech meant silencing it before it was uttered. Today, this is called prior restraint, and the Supreme Court has essentially outlawed it.

To the antifederalists or Democratic-Republicans, as they called themselves the First Amendment prohibited Congress from interfering with or punishing any speech.

Adams Department of Justice indicted and prosecuted and convicted antifederalists among them a congressman for their critical speech.

When Jefferson won the presidency and the antifederalists won control of Congress, the Federalists repealed the speech suppression parts of the Alien and Sedition Acts on the eve of their departure from congressional control, lest it be used against them.

During the Civil War, President Abraham Lincoln locked up hundreds of journalists in the North who were critical of his war efforts. During World War I, President Woodrow Wilson whom my alma mater Princeton University is trying to erase from its memory arrested folks for reading the Declaration of Independence aloud or singing German beer hall songs.

Lincoln argued that preserving the Union was more important than preserving the First Amendment, and Wilson argued that the First Amendment only restrained Congress, not the president. Both arguments have since been rejected by the courts.

In the 1950s, the feds successfully prosecuted Cold War dissenters on the theory that their speech was dangerous and might have a tendency to violence. Some of the victims of this torturous rationale died in prison.

The governments respect for speech has waxed and waned. It is at its lowest ebb during wartime. Of course, dissent during wartime which challenges the governments use of force to kill is often the most important and timely speech.

It was not until 1969, in a case called Brandenburg v. Ohio, that the Supreme Court gave us a modern definition of the freedom of speech. Brandenburg harangued a crowd in Hamilton County, Ohio, and urged them to march to Washington and take back the federal government from Blacks and Jews, whom he argued were in control. He was convicted in an Ohio state court of criminal syndicalism basically, the use of speech to arouse others to violence.

The Supreme Court unanimously reversed his conviction and held that all innocuous speech is absolutely protected, and all speech is innocuous when there is time for more speech to rebut it. The same Supreme Court had just ruled in Times v. Sullivan that the whole purpose of the First Amendment is to encourage and protect open, wide, robust, even caustic and unbridled speech.

The speech we love needs no protection. The speech we hate does. The government has no authority to evaluate speech. As the framers understood, all persons have a natural right to think as we wish and to say and publish whatever we think. Even hateful, hurtful and harmful speech is protected speech.

Yet, in perilous times like the present, we have seen efforts to use the courts to block the publication of unflattering books. We have seen state governors use the police to protect gatherings of protesters with whose message they agreed and to disburse critical protesters. We have seen mobs silence speakers while the police did nothing.

Punishing speech is the most dangerous business because there will be no end to it. The remedy for hateful or threatening speech is not silence or punishments; it is more speech speech that challenges the speaker.

Why do folks in government want to silence their opponents? They fear an undermining of their power. The dissenters might make more appealing arguments than they do. St. Augustine taught that nearly all in government want to tell others how to live.

How about we all say whatever we want and the government leaves us alone?

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Napolitano: A brief history of the freedom of speech in America - Daily Herald

3News Legal Analyst Stephanie Haney breaks down what the states can and can't do when it comes to restricting display of the Confederate flag

CLEVELAND Legal Analysis:Right now, people are calling for government officials and private organizations to ban the display of the Confederate flag because of its tie to slavery, but those two groups aren't created equal when it comes to who can make that happen.

People are asking these groups to prohibit the display and sale of the symbol in what we think of as public places, like county fairs.

Here in Ohio, there was even a bill proposed in the House of Representatives to do it. That bill didn't pass, but if it had, the results would have been questionable, because display of the Confederate flag is considered a form a speech.

Our freedom of speech is protected under the First Amendment of the U.S. Constitution, which reads in part:

"Congress shall make no law ... abridging the freedom of speech, or of the press."

The start of that sentence is the important part, because the First Amendment protects our speech from Congress, also known as "the government" or "the state."

Legally speaking, our county fairs can do whatever they want when it comes to banning the Confederate flag, because theyre not run by the government.

The First Amendment only stops the government from restricting our speech, except for in certain cases.

Exceptions that are not protected include when someone says something thats meant to provoke someone to break the law (also referred to as speech that is intended and likely to lead to "imminent lawless action"), speech used to intimidate, or legitimately threaten someone else.

You may be surprised to know that both hate speech, and speech that promotes the idea of violence are protected from being restricted by the state.

The government can limit where and when speech is expressed, but it has to be across the board (or "content neutral"), because restricting only a specific point of view is unconstitutional.

The closing speech in the 1995 film, "The American President," sums it up well, delivered by the character of President Andrew Shepherd, played by Michael Douglas.

"You want free speech?" he asks of the crowd in the press briefing room and the fictional Americans watching at home.

"Lets see you acknowledge a man whose words make your blood boil, whos standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours."

Then the character brings up another controversial topic when it comes to free speech and flags.

"You want to claim this land as the land of the free?"he asks.

"Then the symbol of your country cannot just be a flag. The symbol also has to be one of its citizens exercising his right to burn that flag in protest. Now show me that, defend that, celebrate that in your classrooms. Then you can stand up and sing about the land of the free."

To sum it up, if only popular ideas were protected, we wouldnt need the first amendment.

Stephanie Haney is licensed to practice law in both Ohio and California.

The information in this article is provided for general informational purposes only. None of the information in this article is offered, nor should it be construed, as legal advice on any matter.

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Watch | Can states ban the display of the Confederate flag? in 'Legally Speaking' - WKYC.com

After successfully representing a journalist in his fight for corporate compliance records, the Reporters Committee recently secured a settlement for attorneys fees from the U.S. Justice Department.

The May settlement brought closure to a five-year public records battle between the agency and reporter Dylan Tokar over the journalists efforts to shed light on the process by which government officials evaluate and appoint attorneys to serve as corporate watchdogs.

Five years ago, Tokar, who now covers corporate compliance and white-collar crime for The Wall Street Journal, sought records related to a federal oversight program that monitors companies alleged to have violated the Foreign Corrupt Practices Act.

The federal law prohibits American firms from bribing members of foreign governments to advance their business interests. Firms investigated for potentially violating the law can skirt criminal conviction by entering into a Deferred Prosecution Agreement, in which the firm agrees to pay for an independent monitor, appointed by the Justice Department, to investigate its practices for a set period of time.

Because these independent monitors often white-collar defense attorneys oversee companies for long periods of time, the positions are attractive to large law firms, as they bring in long-term, lucrative work. But the quiet interplay between top officials in the federal government and the small nexus of corporate attorneys likely to vy for these positions has raised concerns about potential conflicts of interest.

And despite internal Justice Department guidelines meant to ensure a proper appointment process for monitors, questions about the role of the defendant corporation in the selection process have only added to concerns about the selection process integrity.

Tokars search for the Justice Department records sought to answer the central question of whether the agency has followed its guidelines to ensure a fair selection process for corporate monitorships. Among other revelations, Tokars reporting showed that the memos rules created a more rigorous selection process, but it did little to diversify the pool of candidates the Justice Department considered for the roles.

Diversity in the white collar bar is not great, but within the small cohort of lawyers who have served as FCPA monitors it is even worse, Tokar said. The information we obtained allowed us to raise questions about that lack of diversity, and to better hold the DOJ accountable for it.

Between 2004 and the summer of 2018, according to documents Reporters Committee attorneys helped Tokar obtain, the Justice Department selected 48 corporate monitors; only three were women and three were men of color. No women of color were chosen, records show.

These records shed light on a selection process that is shrouded in secrecy and that raise questions about potential conflicts of interest in the Justice Department, said Jennifer Nelson, the Reporters Committee staff attorney who litigated the case with assistance from the First Amendment Clinic at the University of Virginia Law School. The significant public interest in this information far outweighs any privacy concerns that white-collar corporate lawyers considered for these lucrative monitorships might have.

Tokar was a reporter for the trade publication Just Anti-Corruption when he filed two FOIA requests in 2015 seeking documents related to the selection process for corporate monitors, as well as any letters that objected to the release of such information. When the Justice Department failed to respond to his requests, Tokar filed his lawsuit in the U.S. District Court for the District of Columbia in December 2016.

While preparing its defense, the Justice Department produced for Tokar a chart, including some of the information he requested in his FOIA request, but with key information withheld. Tokar would later declare that he noted multiple errors in the chart.

When the Justice Department filed its summary judgment motion in the summer of 2017, it argued that it properly withheld private information, including the names of law firms that nominees for corporate monitorships worked for, as well as the names of the attorneys who were nominated for, but ultimately did not receive, corporate monitor positions. When making this argument, the agency relied on a 1984 case, Core v. U.S. Postal Service, in which a federal appellate court allowed the government to withhold the employment details of unsuccessful applicants for a postal service job. The public disclosure of the applicants job search, the court reasoned at the time, could prove detrimental, as it could alert workers present employers that they are seeking new jobs.

In response, Reporters Committee attorneys argued on Tokars behalf that unsuccessful nominees for corporate monitorships do not have the same privacy interests at stake that the postal workers did in the 1984 case, especially considering an overwhelming public interest in the question of whether the government acts with integrity, particularly when it runs agency programs that are alternatives to the judicial system. The accomplished corporate attorneys considered for corporate monitorships are not job applicants in the traditional sense of the term, the brief explains. Rather, they are members of law firms working on a number of cases at one time.

In fact, being nominated for multiple high-profile monitorships is likely to advance their careers and reputations, even when they are not ultimately selected for a position, Reporters Committee attorneys argued in the motion for summary judgment. Revealing their names simply does not implicate the same issues presented by the disclosure of information about unsuccessful job applicants who may have an interest in preventing their current employers from learning that they wanted to leave their jobs and had sought employment elsewhere.

The D.C. District Court ruled in March 2018 that the Justice Department was not allowed to redact the information it withheld on the basis of its Postal Service privacy argument, and that the agency was also wrong to have produced a bare-bones chart when it should have turned over the documents that Tokar requested.

Another round of filings followed in 2019. That year, on behalf of Tokar, Reporters Committee attorneys contested many of the remaining privacy-related redactions the Justice Department kept in the documents, despite the courts opinion in 2018. At the Courts urging, the organization negotiated the remaining redaction issues outside of the courtroom.

Faced with the relentless pace of the news cycle, it can feel like an exercise in futility to pursue a FOIA for information you might not obtain for years to come, Tokar said. I cant thank the RCFP enough for their willingness to take up that cause on behalf of reporters at news organizations that arent able to do it themselves.

The Reporters Committee has received the settlement fee and moved to dismiss the case.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.

Photo by Tony Webster

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wraps up 5-year FOIA battle with Justice Department - Reporters Committee for Freedom of the Press

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.

The First Amendment to the US Constitution

Donald J. Pickard has made the right call.

Reacting to a concern raised by a voter in Bourne, Mr. Pickard, who is the town moderator, has decided to drop the invocation at the start of Town Meeting.

Mr. Pickard said he understands that his decision will upset a number of people in town.

However, I believe it is more important that we do not offend anyone and their specific religious beliefs by providing an invocation that is perceived as Christianized, he said.

The First Amendment to the Constitution is usually mentioned in connection with freedom of speech or of the press.

But if you look even moderately closely at the wording of the amendment, youll see that theres more in there.

Besides freedom of speech and the press, the amendment also brings in the right to assemble peaceably and to petition the government for a redress of their grievancesa right brought home recently in the widespread and justified protests over the death of a Minneapolis man, George Floyd, while in police custody.

But the very first line of the First Amendment concerns religion: that Congress will not make any law respecting a particular religion or prohibiting the exercise of any religion.

The line was and remains a masterstroke. In 16 words, the Founders took religion off the table. Aware of then-recent European history, when religious wars had devastated the European continent from which they came, the Founders set the entire issue aside.

You can practice whatever religion you want, the First Amendment says, but dont expect that the government will elevate your religion over another or provide you with any special favors.

America essentially has hewed to that idea ever since.

Certainly there was fuzziness around the edges. The Founders were, for the most part, practicing Christians, nearly all of them Protestant. The Christian God was woven into their lives and into their ideals.

So you do have some seepage, such as the phrase In God We Trust or the eye atop the pyramid on American currency.

And, human nature being what it is, religious tensions didnt disappear from the United Statesanything but.

The Roman Catholics, who were fellow Christians, were hardly greeted with open arms by Protestants as they immigrated in increasing numbers into the United States.

The Jews encountered the same discrimination as they arrived on these shores from Protestants and Catholics alike.

In recent decades, Muslim immigrants have run into resistance from Americans who already were here, regardless of whether those Americans practiced any religion themselves.

Leaving aside religious bigotry and discrimination that continue to be practiced by some American citizens, theres the issue of the intrusion of religious, usually Christian, words and practices into what should be secular proceedings and matters.

Flash points in recent decades have included what had been the longtime presence of creches at Christmastime on public land outside town halls and the like.

And prayer in public schools was outlawed only about six decades ago.

Its true that sessions of Congress are opened with a prayer. But in light of a true reading of the First Amendment, the practice is questionable.

Here in Bourne, the issue has properly arisen over the invocation that opens Town Meeting.

A Bourne voter, Robert Zibbell, questioned the Christian nature of the invocation that opened last years Fall Town Meeting. The selectmen told Mr. Zibbell that they would take action to make certain that invocations in the future would be nondenominational in nature.

Along comes last months Annual Town Meetingand a Christian-infused invocation.

Mr. Zibbell again objected, properly. In response, the chairwoman of the board of selectmen, Judith Froman, said communication had fallen down regarding the selectmens decision on the issue last fall.

The town moderator, Mr. Pickard, subsequently decided to drop the invocation entirely for the reason stated above.

Elsewhere on this page, Mr. Zibbell makes the case in a letter to the editor to keep the invocation but to make certain the words are more inclusive and not favoring one religious belief or another.

But any invocation as an official part of a government proceeding is going to violate the First Amendment, even a Town Meeting in a relatively small New England municipality.

On a human level, put yourself in the shoes of someone who doesnt believe in a deity, nondenominational or not. Why should you have to listen to a statement espousing a deity-based message?

This doesnt mean that voters going to Town Meeting should be prohibited from praying. Indeed, they should feel free to pray if they wish to do so.

Exercising their First Amendment rights, they can pray out loud with fellow believers before Town Meeting starts. They can pray silently during the moment of silence just before the meeting, which Mr. Pickard plans to retain. They also can pray silently during some of the lengthy debates that characterize Bourne Town Meetingan understandable reaction in more than a few cases.

But an official prayer from the podium to launch the meeting is, as the expression goes, a bridge too far.

Rather than insist on publicly sponsored words, why not follow the core beliefs of so much spirituality present and active in the United Stateswhether Christian, Jewish, Muslim, Buddhist or otherand make a point of speaking kindly at Town Meeting, of listening closely, of not judging others by their appearance, of resolving to better understand and appreciate the views and thoughts of others?

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The Right Call On The Invocation - Editorial | Editorials - CapeNews.net

From July 28Aug. 7, the Reporters Committee for Freedom of the Press, the National Press Photographers Association, and the Committee to Protect Journalists will lead a series of free training sessions for journalists covering the 2020 national political conventions.

The Democratic National Convention is scheduled for Aug. 1720, 2020, in Milwaukee, Wisconsin, and virtually in regions nationwide. The Republican National Convention is scheduled for Aug. 2427, 2020, in Jacksonville, Florida.

The training series will take place via Zoom the week of July 27, and makeup sessions will be offered the following week of Aug. 3. Interested members of the news media can register for the free training sessions at rcfp.org/2020conventions.

Attorneys from the Reporters Committee and NPPA will lead sessions on legal issues to consider while covering the DNC in Milwaukee and the RNC in Jacksonville, respectively. They will cover the right to record, safely reporting on protests, ways to avoid arrest, what to do if arrested, local bail procedures, and more. The legal training is generously funded in part by the Society of Professional Journalists Foundation.

News reporting on the electoral process is essential to democracy and ensuring people have the information theyre looking for before casting their ballot, said Bruce Brown, executive director of the Reporters Committee for Freedom of the Press. Were glad to work with our partners and local media lawyers to ensure journalists are equipped with the knowledge and resources to safely cover this years national political conventions and handle any challenges that might arise.

The Reporters Committees Election Legal Guide published in English and Spanish will also be available to journalists reporting on the 2020 elections and provides information about exit polling, newsgathering in or near polling places, ballot selfies, and more. The NPPAs Practical Advice about Covering High Profile News Stories is also available.

The Reporters Committee will also provide special coverage of its legal hotline, as it has in every election cycle since 1972, for journalists reporting on the conventions. Journalists who have questions or encounter issues while reporting can contact the hotline at 1-800-336-4243 or by using our online form, to reach Reporters Committee attorneys in Washington, D.C., as well as local attorneys who have generously agreed to provide assistance in Milwaukee (Brian C. Spahn at Godfrey Kahn and Jason D. Luczak at Gimbel, Reilly, Guerin & Brown); Jacksonville (Edward L. Birk & Michael A. Manning at Marks Gray P.A. and Henry M. Coxe, III, at Bedell Firm); and Charlotte (Jonathan E. Buchan at Essex Richards), where select RNC events will take place.

NPPA and CPJ will lead a session on physical safety, focusing on general guidance and practical tips to help keep media workers safe when reporting from a protest location. The session will also offer advice on preventative measures to help reduce exposure to Novel Coronavirus infection (COVID-19).

The National Press Photographers Association is very pleased to be once again partnering with the Reporters Committee to help journalists prepare for covering the 2020 elections and especially the political conventions, said NPPA Executive Director Akili-Casundria Ramsess. Although the COVID-19 pandemic presents increased challenges, we look forward to the opportunity of providing additional safety and security training along with CPJ.

CPJ will lead a session on digital security, focusing on practical tips to better protect yourself against online harassment and doxxing, as well as guidance on securing your phone and laptop while covering events.

CPJ has for years issued safety guidance to help journalists around the world protect their physical and digital security, especially ahead of elections which are often flashpoints for hostility toward the press, said Mara Salazar Ferro, CPJs Emergencies Director. Journalists play an essential role in ensuring that the public is well-informed and holding public figures accountable, and we look forward to working with our partners to ensure journalists have the knowledge and tools they need to safely perform their jobs.

Register for the free training sessions at rcfp.org/2020conventions.

About the Reporters Committee for Freedom of the Press

The Reporters Committee for Freedom of the Press provides pro bono legal representation, amicus curiae support, and other legal resources to protect First Amendment freedoms and the newsgathering rights of journalists. The Reporters Committee serves the nations leading news organizations; thousands of reporters, editors, and media lawyers; and many more who use our online and mobile resources. For updates on our work, sign up for our email list, or follow us on Twitter, Instagram, and Facebook.

About National Press Photographers Association

Since its founding in 1946, the National Press Photographers Association (NPPA) has been the Voice of Visual Journalists. NPPA is a 501(c)(6) non-profit professional organization dedicated to the advancement of visual journalism, its creation, editing and distribution in all news media. NPPA encourages visual journalists to reflect the highest standards of quality and ethics in their professional performance, in their business practices and in their comportment. NPPA vigorously advocates for and protects the Constitutional rights of journalists as well as freedom of the press and speech in all its forms, especially as it relates to visual journalism. Its members include still and television photographers, editors, students, and representatives of businesses serving the visual journalism community. For updates on our work, go to ourwebsiteor follow us onTwitter,Instagram, andFacebook.

About the Committee to Protect Journalists

The Committee to Protect Journalists is an independent, nonprofit organization that promotes press freedom worldwide. We defend the right of journalists to report the news safely and without fear of reprisal. CPJ documents hundreds of attacks on the press each year; denounces press freedom violations; meets with heads of state and high-ranking officials; spearheads or advises on diplomatic efforts; and works with other organizations to ensure that justice prevails when journalists are imprisoned or killed. CPJ also provides comprehensive, life-saving support to journalists and media support staff through up-to-date safety and security information and rapid response assistance. For updates, visit our website or follow us on Twitter, Instagram, and Facebook.

AP Photoby David J. Phillip

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RCFP, NPPA, CPJ to train journalists covering 2020 political conventions - Reporters Committee for Freedom of the Press

A First Amendment line that grows steadily brighter is being drawn between American courts in the digital age.

It is the line between e-filing courts that give on-receipt access to reporters and e-filing courts that fight on-receipt access like it was the devils handiwork. In that second group, clerks want to first docket the new filings, which results in delay, which is the enemy of news.

On the access side of the line are the federal courts and state courts in Alabama, Connecticut, Hawaii, New York and Utah, all on a statewide basis, plus individual courts in California, Georgia and Nevada.

On the delay side of the line are e-filing state courts that are spread around the nation, including Illinois, Florida, Kansas, Minnesota, Missouri and Texas. A few individual clerks in California also have also opted for delay.

The evolution in state courts of a restrictive policy on public access roughly matches up with a wave of interest in privacy from administrators over the last decade.

The movement crystallized in a set of conferences in Williamsburg from 2013 to 2016 called Privacy and Public Access, sponsored by the Conference of State Court Administrators and attended by state clerks and administrators from all parts of the nation.

At that conference, the notion of practical obscurity emerged as a dominant theme. The idea behind practical obscurity is that court records in paper form are often difficult to find. Therefore paper records are different from electronic records which are easy to search. And therefore this is the big leap access to electronic records should be restricted.

That train of thought can be translated as saying the public record should be hard to see.

The intellectual dust storm that originated in Williamsburg has lingered in the restrictionist views of many state court administrators. In contrast, it is almost entirely absent from the federal courts.

I have never heard a federal official talk about practical obscurity.

And the state court opposition to on-receipt access is not isolated, it is organized. Williamsburg sponsor COSCA worked with the National Center for State Courts to oppose a 2016 ruling out of Californias Central District that said the First Amendment right of access attaches to newly filed court records upon the clerks receipt.

I recently saw a survey sent out by COSCA and the national center in support of that opposition. The survey asks administrators across the nation to opine on the terrible things that might result from on-receipt access. One answers that the public might see unfounded allegations. Oh my goodness!

But also scattered within the survey are answers from administrators who say on-receipt access is no problem.

Question: What is the timing: are documents provided upon submission or after acceptance.

Answer from Utah state court administrator Dan Becker: Public documents are available upon filing.

Q: If you were required to provide same-day access to civil complaints and all exhibits and other attachments when filed (before any review or acceptance process by the court) on paper or electronically, could you do so?

A: Yes.

Q: What challenges would this pose?

A: None.

The survey was intended to support an amicus brief arguing that no right of access existed to court pleadings before a court hearing none at all. That argument was sent packing by the Ninth Circuit in its Planet III ruling.

But, in reviewing the brief recently, what I found most telling was its view of the press as simple scandal mongers. The brief concludes by saying on-receipt access is an open invitation for those who would use such records to gratify private spite or promote public scandal.

The rational answer to that bit of derision comes fromJudge Henry Coke Morgan Jr. in the Eastern District of Virginia. His conclusions were forged in the fires of a four-day trial where he was looking at me from about ten feet away while I testified under oath.

I think he had a good idea of why I pursue First Amendment access, in the face of just about the entire administrative apparatus of state courts in America.

Plaintiff, and other members of the press and public, have historically enjoyed a tradition of court clerks making most newly filed civil complaints publicly available on the day that they are filed, said the judge.

I think that the point the plaintiffs making is that it has its news value as soon as it happens, he added. If you dont get it when its fresh, its like stale bread. So I think the plaintiffs point on that is well-taken.

His court as well as the appellate court above provide on-receipt, public access to new pleadings.

_____

More stories and columns on the Virginia trial:

National Press Corps Enter First Amendment Fray to See Court Filings on Same Day * U.S. Judge Slaps Virginia Clerks With $2 Million Fee Award in First Amendment Case*E-Filing and the First Amendment* Matter of Choice *The Dicta: Guesswork About Press Access * Presumption and Fact: The Ask for Access *CNSs View Accurately Told*Access Solution: The E-Inbox *Access Law in the Electronic Age * Bread and News * Flip Side of Court Tech * First Amendment Right to See Court Documents on Day of Filing * Tradition of Same-Day Access * The News Cycle

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First Amendment Bright Line in the Digital Age - Courthouse News Service

The Christian tradition has a lot to say about community. People werent made to be solitary individualists. Aristotle may have been the first to describe man as a social animal, but he was not the first to recognize our inherent sociability.

The Scriptures describe God creating human beings to have fellowship with him. As God himself has eternal fellowship within the triune Godhead, human beings are also designed to have fellowship with each other. As God proclaimed in the Garden of Eden, It is not good for the man to be alone (Gen. 2:18). Over the course of biblical history, God ordains a series of social institutions: marriage, family, state, church. Of course there is an important place for the individual in Christian anthropology. But the point is that the individual existsis created to existwithin a rich set of social interactions, institutions, and associations.

Mainstream contemporary political and legal theory, by contrast, tends to operate within a more constrained social landscape. The focus is on the relationship between the individual and the state. By comparison, non-state social groups get short shrift.

Several scholars have been working to change that, including Luke C. Sheahan, a political theorist at Duquesne University. Sheahans new book, Why Associations Matter: The Case for First Amendment Pluralism, makes the case for the importance of voluntary associations in our political landscape. Rather than the dichotomy of individual and state, Sheahan offers an account of society with three components: individual, state, and association. He argues that the American judiciary in particular has failed to recognize the importance of associations. Finally, he suggests ways to do better in the future. Thats where the First Amendment comes in, with its promises of protection for freedom of speech, religion, and assembly.

The books first task is to develop what Sheahan calls a political sociology of associations. Sheahan, echoing the sociologist Robert Nisbet, argues that human beings are social creatures who crave community and connection with others. This is a point that will intuitively appeal to many readers, but Sheahan doesnt elaborate on the foundations for the insight. One might wonder (as John Dewey did years before) whether this is grounded in psychology, biological instinct, or something else. To these, one could add Christian anthropology. In any case, Sheahan never invokes religious reasons, and it is enough for him that one accepts that humans are social.

Sheahan believes that associating with others has intrinsic value. It is in various social groups, he writes, that ones very personality is shaped and within which one finds identity and purpose. What is an association? Its not just a casual meeting of people. But neither does it have to be a formal organization with a constitution and bylaws.

Sheahan defines associations functionally (again drawing on sociological work by Nisbet), listing seven characteristics. Each association has (1) a function, (2) a sense of purpose (which will often coincide with the function), (3) an authority structure, (4) some amount of hierarchy, (5) solidarity among members, (6) a sense of the associations importance, and (7) a belief that the association has a special status relative to the rest of the world. This is a rich description of an association, whether or not one agrees with every point. This kind of association is one with a strong conception of its own identity and purpose.

So how does all of this apply to our legal system and political culture? Sheahans critique of existing law focuses on the Supreme Courts treatment of associations under the First Amendment. The First Amendment freedom of association protects freedom of speech and assembly (as well as religious freedom and press freedom). But the Supreme Court has done very little to recognize assembly as a right on its own. Instead, it has largely replaced references to freedom of assembly with references to freedom of association.

This might sound like a distinction without a differenceuntil one considers what association means to the contemporary Supreme Court. Association is not valued for its own sake but only as a means to further free speech. Building on the pioneering work of evangelical legal scholar John Inazus critiquing the reduction of association to speech, Sheahan explains that the Supreme Court has made speech as an individual right the predicate for the recognition of any associational rights. Sheahan calls this the First Amendment dichotomy: For the Supreme Court, First Amendment rights are either individual rights, or else there are no limits on how the government can restrict them.

Problems with this line of reasoning were evident in the Supreme Courts 2010 decision in Christian Legal Society v. Martinez. In that case, the University of California Hastings College of the Law required student organizations to be open to any student. It refused to recognize a student chapter of the Christian Legal Society because the group required its officers to hold Christian doctrinal and ethical commitments, including the belief that sex should be reserved for marriage between a man and a woman. The Supreme Court ruled in favor of the university. It could require a student group to admit anyone to membership regardless of the groups own convictions (or else give up its status as a recognized student organization on campus).

Sheahan thinks the court was seriously mistaken in its approach. His point is not just that the courts majority was wrong. Sheahans argument goes deeper, criticizing even the dissenting justices who would have ruled in favor of the student group. The problem, Sheahan says, is that neither the majority nor the dissent gave an account of why associations are valuable apart from their instrumental utility in advancing speech by individuals within the association.

In place of the existing precedents, Sheahan argues that the courts should recognize associations, not just individuals, as bearers of First Amendment rights. He calls this First Amendment pluralism. These rights shouldnt depend on the association being expressive (that is, primarily concerned with speech). This associational right could be rooted in the Constitution (perhaps in the First Amendments guarantee of the right to assemble) or in a specific statute. Sheahan suggests legislation (modeled on the Religious Freedom Restoration Act) that would compel judges to apply strict scrutiny to any government action that infringes on the freedom of association, broadly defined.

An obvious objection to this kind of protection for associations is that it could undercut civil-rights protections. Sheahan has two main responses, both familiar to those following the conversation on associational rights.

First, Sheahan says that his argument only concerns protection for voluntary associations, not for commercial or educational organizations (a racially discriminatory private school could still lose its tax exemption, for example). Second, he suggests that race discrimination might be a unique (and uniquely unjust) form of discrimination, such that a state university (for instance) could rightfully refuse recognition to a voluntary student organization that practices it. Sheahan recognizes that this raises as many questions as it answers. What characteristics make race discrimination different? (Is it the troubled history of race relations in America? The centrality of race to a persons identity?) Are there other kinds of discrimination (sex or, more controversially, sexual orientation) that are covered by the same principles? Does it undercut a principled commitment to associational pluralism to recognize areas where the state has a compelling interest in prohibiting discrimination? These are tough issues. To his credit, Sheahan doesnt shy away from this. But given that hes not the first to confront the issue, hopefully we will see more work on the subject in the future.

Another question that Sheahan doesnt analyze at all is how a defense of associational rights relates to corporate rights. Corporations are voluntary associations of a sort. The Supreme Court has controversially said that corporations can exercise constitutional rights. How does this fit with Sheahans vision of associational rights? And what makes commercial organizations different from noncommercial voluntary associations?

Sheahan doesnt have all the answers. But his book advances an important conversation about how to appreciate the social dimension of lifeincluding associationsin the face of an individualistic intellectual culture. Sheahans synthesis of work by Nisbet and others on the structure of associations is likely to become a point of reference for anyone serious about understanding the structure of human sociability. And his analysis of the Supreme Courts approach to association deepens existing critiques.

Even though this book isnt specifically about religious organizations, this conversation is one that Christian readers in particular have reason to care about. Churches have an interest in seeing continued legal protection as institutions; religious organizations like the Christian Legal Society are directly affected when courts recognize (or fail to recognize) associational rights. Christian teaching is already clear that human nature craves fellowship and sociability. Figuring out how to wisely live that out is a task for everyone.

Lael Weinberger is the Berger-Howe Legal History Fellow at Harvard Law School.

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Where Two or More Are Gathered, the First Amendment Should Protect Them - ChristianityToday.com

Sister Loraine McGuire with Little Sisters of the Poor after the Supreme Court heard Zubik v. Burwell, an appeal demanding exemption from providing insurance covering contraception, in Washington, D.C., March 23, 2016. (Joshua Roberts/Reuters)

In a piece for the Washington Posts Plum Line blog, opinion columnist Paul Waldman offers a few rather disorienting comments on yesterdays Supreme Court decision inLittle Sisters of the Poor v. Pennsylvania, et al.

The case dealt with whether the Trump administration had the authority to grant religious and moral exemptions to employers who object to covering contraceptives and abortion-inducing drugs in their health-insurance plans, as Obamacares HHS mandate requires. One such employer is the Little Sisters, a group of Catholic nuns who serve the elderly, sick, and dying poor.

In a 7-2 decision, the Court ruled in favor of the administrations authority to grant those exemptions and thus, by extension, in favor of the religious and conscience rights of the Little Sisters.

Waldman observes that the ruling is evidence of a conservative majority on the Supreme Court, one that is determined to create a class of special rights that in practice are enjoyed only by conservative Christians. (Justices Kagan and Breyer will be thrilled, Im sure, to hear of their new assignation.)

This class of special rights Waldman mentions is, of course, the religion clauses of the First Amendment, and conservative Christians continue showing up in court to claim its protections only because their fellow citizens and antagonistic government officials continue forcing them to do so.

Later on, after advocating the abolition of employer-based health-care coverage something many conservatives would welcome Waldman further reveals his ignorance. One benefit of removing employer-based coverage, he avers, would be that it would deprive religious conservatives of the ability to keep suing over contraception, which gives them a focus for their endless cries of oppression and aggrievement.

It is difficult to imagine how one could honestly believe that the Christian owners of Hobby Lobby, the University of Notre Dame, and the Little Sisters of the Poor were overjoyed to have spent nearly a decade in court fighting merely to preserve their right to practice their faith in the public square.

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The Class of Special Rights Called the First Amendment - National Review

A group of movie theater companies including AMC, Cinemark and Regal have filed a lawsuit against the governor of New Jersey, claiming a First Amendment right to reopen during the pandemic.

The companies, led by the National Association of Theatre Owners, is challenging Gov. Phil Murphys order that allows malls, libraries, churches and museums to reopen, but keeps movie theaters and other entertainment venues closed.

Plaintiffs bring this action to ensure that movie theatre are treated equally with other similarly situated places of public assembly, and in order to exercise their First Amendment rights to exhibit films of significant artistic, cultural, political and popular merit, the lawsuit states.

The suit takes particular issue with Murphys orders allowing churches to reopen, with indoor gatherings limited to 100 people or 25% capacity. The plaintiffs contend there is no reason that theaters should not be allowed to reopen under the same restrictions.

There is no rational basis for Defendants distinction between, for example, places of worship and movie theatres for purposes of reopening, yet Defendants have allowed places of worship to reopen while movie theatres must remain closed, with no scheduled date for reopening, the lawsuit states.

Theaters have been designated for reopening under Stage 3 of the states protocols. The state entered Stage 2 on June 15, and the state has subsequently allowed indoor malls to reopen. Gyms, fitness centers, indoor amusement parks, performing arts centers, and multiplexes remain closed.

The major cinema chains are hoping to be able to open by the end of July. New Jersey is one of a handful of states that have not already allowed theaters to reopen or set a timeline that would allow them to do so by the end of July.

The exhibitors have met with state officials to share their safety protocols, but allege that New Jersey officials have been unmoved.

A spokesman for the National Association of Theatre Owners and a spokesman for Gov. Murphy did not immediately respond to requests for comment.

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Movie Theaters Sue New Jersey Claiming First Amendment Right to Reopen - Variety

Independence Day may have come and gone, but it's clear that patriotism is alive and well in this country. I dont know about you, but it was so nice to unplug for a few days and spend some time with family, friends and fellow patriots as we celebrated our God-given freedoms and liberties that we enjoy in the United States of America.

And whether you spent the holiday participating at a peaceful rally or shooting off an explosive display of colorful fireworks, the best part about our country is our First Amendment the freedom of speech.

Related: Are fake meats gaining traction this summer?

As a blogger, writer and speaker by trade, this freedom is not lost on me. We are a country of free thinkers, and I hope our ability to freely express our opinions without fear of repercussion is something that is never stripped from us.

All that said, sometimes the First Amendment can be distorted in a way that does harm to others. Im not talking about being offensive or saying something that isnt considered politically correct or in poor taste. Im talking about something that leads to less transparency and greater consumer confusion in the marketplace.

Related: 8 things about fake meats for beef producers to consider

On June 9, a letter submitted by individuals at Harvard Law School cited the First Amendment as the main reason why cell-cultured protein companies should be able to freely label their products as they see fit.

Here is an excerpt from the letter:

The Harvard Law School Animal Law & Policy Clinic writes to respectfully urge the U.S. Department of Agriculture (USDA) to adopt a labeling approach for cell-based meat and poultry products that does not overly restrict speech and that respects the First Amendment. The Animal Law & Policy Clinic (ALPC) undertakes work in the area of animal law and policy, domestically and internationally, and focuses on high-impact opportunities to improve the treatment of animals through litigation, policy analysis, and applied academic research.

As part of this work, ALPC closely monitors technological developments within the food sector that have the potential to affect animals. Cell-based meat and poultry products (hereinafter referred to collectively as cell-based meat, also known as cultured or cultivated meat) are such innovations in food, with tremendous potential to positively impact animals, human health, and environmental sustainability.

As USDA Secretary Perdue envisions, cell-based meat could even offer a way to meet the tremendous protein needs of the growing global population. While the regulatory pathway for cell-based meats is not yet entirely defined, the USDA Food Safety and Inspection Service has recognized cell-based meat and poultry products as meat and poultry products under its governing statutes, has asserted jurisdiction over labeling for such products, and is in the process of drafting labeling regulations for cell-based meats.

It is at this juncture that ALPC writes to urge USDA-FSIS to adopt a labeling approach that does not overly restrict speech and respects the protections afforded to commercial speech under the First Amendment. As detailed extensively below, a ban on the use of common or standardized meat and poultry terms on non-misleading cell-based meat labels is likely unconstitutional, as are labeling restrictions that are more extensive than necessary.

USDA-FSIS should wait until it has a better understanding of the composition and safety of finished cell-based meat products and an opportunity to review proposed labels before establishing speech restrictions that raise constitutional questions. By delaying the establishment of restrictive labeling requirements, USDA-FSIS will be able to assess whether, or to what extent, such speech restrictions are actually necessary in order to protect consumers from being misled.

Further, USDA-FSIS should only compel process-based disclosures or qualifiers on cell-based meat labels on a case-by-case basis when doing so is necessary to protect consumers from an increased food safety risk or material compositional difference.

While the folks at Harvard build a good case, I urge USDA to ensure that these products are clearly labeled to distinguish what is grown in a petri dish compared to what is produced on the hoof.

Clearly, these products are going to make claims on environmental, animal welfare and nutritional superiority to traditional meat products, as stated in this letter. While these claims are unproven and unsubstantiated, there should also be clearly defined labeling rules in place that limits these companies from also stealing our nomenclature and posing as regular beef.

Although I could talk at great lengths on this topic, Ill leave you with this every food offered to consumers should have to follow the same rigorous testing, limitations on marketing claims and proper and clear labeling rules, no matter what. Whether its traditional butter or a new-age petri dish protein, consumers deserve clear, transparent and well-defined labels that allow them to make educated and informed decisions in the grocery store.

By the way, I recently sat down with Willie Vogt, Farm Progress executive director, to discuss alternative protein trends, summer grilling, beef nutrition and more.

The interview was featured on the Around Farm Progress podcast. Of our chat, Vogt writes, Beef, it's on the grill this summer. But there's more going on with the beef industry, from how to cook the high-quality protein properly, to climate change, to a changing competitive landscape.

To explore those topics, in this episode of the podcast Around Farm Progress, Amanda Radke, long-time blogger forBEEF magazine,offers insight on a few hot topics, from grilling resources, to climate change and she even discusses the marketing approaches taken by meat-alternative companies. Oh, and she has an up-and-coming competitor in promoting beef, her daughter Scarlett.

Listen to the entire conversation by clicking here.

The opinions of Amanda Radke are not necessarily those of beefmagazine.com or Farm Progress.

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The First Amendment and alternative proteins - Beef Magazine