Two of the nations leading bar associations recently issued warnings about attorneys who mislead the public, make baseless charges, or blatantly lie about highly charged matters to be resolved in court. Both associations were responding to false claims made by attorneys for former President Donald Trump about the search of his Mar-a-Lago resident, challenging its lawfulness and the integrity of the federal government.

Some of the statements have been shown to be verifiably false, while the rest lacked a scintilla of evidence. Yet confronted with contrary facts, none of those attorneys provided support for their statements or corrected the record. Words are consequential, the associations underscoredthey can invoke violence directed at judges, FBI agents, and everyone involved in law enforcement.

Such lies by lawyers are nothing new. They continue a rampant pattern of lies offered in court and in the public sphere by election deniers.

The New York City Bar Associations report starkly reiterated that attorneys should not make claims of wrongdoing against officers of the court for which they have no factual basis, or which they know to be incorrect. Nor should attorneys, especially in a highly charged environment of public interest, make comments about the judicial processes or judicial officers that they know to be demonstrably misleading or palpably false.

A week earlier, the New York County Lawyers Association called out the danger of threats and antisemitic slurs aimed at the federal magistrate judge who issued the Mar-a-Lago warrant, as well as the identification of two FBI agents involved in the search, and the subsequent armed attack on the FBIs Cincinnati office.

Such warnings implicitly raise a crucial First Amendment question: Do lawyers lies have the same First Amendment protections as lies by others?

As I explained in A Right to Lie? Presidents, Other Liars, and the First Amendment, the Speech Clause impedes the states power to punish most lies. Long-standing exceptions to that principle include regulation of defamation, exemplified in current lawsuits brought by Dominion Voting Systems and Smartmatic against Fox News and others.

However, First Amendment protection for knowing falsehoods does not amount to an affirmative right to lie. The state violates the Constitution when it punishes speech simply because a court believes it to be false. The US Supreme Court has indicated that the government may only punish verifiable false statements of fact that harm others or unjustly benefit the liar.

The First Amendment may create an insuperable obstacle to state regulation of lies attorneys tell about pending proceedings, but it does not apply to private discipline by professional organizations. Arguably, as the New York City Bar suggested, attorneys waive some of their First Amendment rights to lie about public events and submit to the jurisdiction of the bar association as a condition of their license to practice law.

It is important to distinguish several settings in which lawyers might knowingly misrepresent the facts.

First, lawyers who represent clients in the dispute must be truthful in all statements to a court as well as to third parties, including the public. The ABA Model Rules of Professional Conduct prohibits attorneys from making false statements of fact or law before a legal tribunal as well as to the public.

A federal judge in Michigan explained in sanctioning Trump attorney Sidney Powell for her lies about the 2020 election and referring her to the Texas bar for professional discipline that conjecture and speculation are neither permitted nor welcomed in a court of law.

Referencing a 1991 Supreme Court opinion, she added, it is well-established that an attorneys freedom of speech is circumscribed upon entering the courtroom. In court, attorneys do not retain personal First Amendment rights because they are just doing their jobs. The legal definition of lies does not include conjecture, opinion, and the like, but courts require more of attorneys than not technically lyingassertions must be backed by evidence.

Of course the Michigan court did not mean to suggest that lawyers representing clients can lie outside of judicial proceedings. Powell carefully limited her fabrications to extrajudicial settings. She was cautious in court filings, and even asked the court to disregard her public statements as too incredible to be taken seriously.

Indeed, a New York appellate court upheld the suspension of Rudy Giulianis law license in part because of his false statements of material fact or law to third persons, that is, the general public. Giuliani communicated demonstrably false and misleading statements to courts, lawmakers and the public at large while trying to overturn the 2020 presidential election results.

A third and more nuanced situation involves lawyers who are not involved in the controversy. The Model Rules of Professional Conduct generally apply to attorneys in the course of representing a client, and the Supreme Courts conclusion that lawyers doing their jobs in court lack First Amendment rights does not seem to apply to attorneys without a client who speak about matters of public concern.

But the New York City Bar exhorted all attorneys to refrain from falsehoods. The specific setting and the lawyers choice of hat may matter. If speaking as myself, a concerned citizen, or as a legal opinion commentator, the scope for prevarication may be wider than if the lawyer speaks as the chair of the judiciary committee.

On what ground can we demand lawyers stay within the boundaries of professional propriety? This brings us to the quintessential features of the legal profession.

Upon admission to practice each lawyer is considered a public citizen having special responsibility for the quality of justice. As the Model Rules of Professional Conduct explain, Lawyers play a vital role in the preservation of society. That is why we hold ourselves to high aspirational standards, even when we may lack effective means of enforcement.

The New York bar associations were right to rebuke flagrant falsehoods that target the very rule of law. We should all take those warnings seriously.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Write for Us: Author Guidelines

Catherine J. Ross is Lyle T. Alverson Professor of Law at the George Washington University Law School. She specializes in constitutional law with particular emphasis on the First Amendment, and family law. She is the author of A Right to Lie? Presidents, Other Liars, and the First Amendment.

Read more from the original source:

Does the First Amendment Protect Attorneys Who Lie? - Bloomberg Law

Dahlia Lithwick will give a lecture in the Osher Lifelong Learning Auditorium on Sept. 15 addressing Supreme Court decisions, such as Roe v. Wade and the separation of church and state.

Dahlia Lithwick, an award-winning journalist, writer, and lawyer, is speaking at Florida Atlantic University on Sept. 15 in celebration of Constitution Day. Her goal is to educate the community about Supreme Court decisions, such as Roe v. Wade and the separation of church and state, all of which impact First Amendment freedoms.

FAU students, faculty, and staff can attend the event at the Osher Lifelong Learning Auditorium for free with their FAU ID. The first 200 tickets claimed will come with a copy of Lithwicks book Lady Justice: Women, the Law, and the Battle to Save America, which attendees will have the opportunity to get signed at the event. FAU students, faculty, and staff can get tickets at http://www.fauevents.com, and members of the public can get tickets for $25 by making an account.

Director of the School of Communication and Multimedia Studies (SCMS), Carol Mills, believes Lithwick will help continue the tradition of the SCMS selecting journalists who are knowledgeable on the issues of freedom of the press. The school is responsible for selecting the keynote speaker, and for this year, the school chose Lithwick.

Although students may enter college thinking primarily about their career trajectory, they should also be preparing to be civically engaged citizens in a democratic society, Mills said. Events like Constitution Day, and the Breezeway Dialogue Series, help all students become more aware of the key issues and concerns that shape our world.

Lithwick is a senior editor at Slate, where she has been writing since 1999 and has also been published by The New York Times, Harpers, The New Yorker, The Washington Post, The New Republic, and Commentary. She is also the host of Amicus, Slates award-winning biweekly podcast about the law and the Supreme Court. She also frequently appears as a commentator on MSNBC.

Dahlia Lithwick is a perfect person [for this event], I would say because she is one of the foremost journalists and commentators covering the Supreme Court today, said journalism professor and event organizer Ilene Prusher.

She hopes that people who attend this event will have an easier time being able to connect the dots between Supreme Court decisions and how they will impact First Amendment freedoms.

[Lithwicks] knowledge of [law] is simply extraordinary. She has an incredible knack for being able to break down legal issues that are both understandable and engaging, Prusher said.

As of late, Lithwick has taken a dim view of the direction the current Supreme Court has taken in regard to personal freedoms.

Published on Slates website, Lithwick says, As the conservative supermajority that controls the Roberts court careens through the remainder of this term, take note of which types of people deserve privacy and spiritual dignity, and the right to be let alone, and which do not.

Lithwick and her staff did not respond to requests for comment by the time of publication.

Jessica Abramsky is a contributing writer for the University Press. For more information on this article or others, you can reach Jessica at [emailprotected]

Go here to see the original:

Award-winning journalist and lawyer to speak at FAU on First Amendment freedoms for Constitution Day - University Press

Arizona State University

Michael Scott

A lawsuit filed by theAmerican Civil Liberties Union (ACLU)and some local media outlets is challenging the constitutionality of a new Arizona law, which prevents people from filming police within 8 feet of the officer.

There is an exception for people who are themselves the subject of the police action. The groups suing argue it violates the First Amendment rights of those who want to record what the police are doing and those who want to see what police are doing.

Without an injunction, the law will take effect later this month.

Attorney General Mark Brnovich, by the way, says he will not defend the law in court. In filings, he said itd be up to county prosecutors, not his office, to decide whether or not to pursue charges, so those offices should be the ones defending the law. Both the Maricopa County Attorney and Sheriffs offices have also said they will not defend the law or oppose the request to block it from taking effect.

Michael Scott says the law seems to be aimed at addressing a challenge police officers face: giving them the space to do what they need to do without undue interference or obstruction. But Scott also says that competes with another legitimate interest the public hasthe ability to observe and record what police are doing.

Scott is a former police officer and a clinical professor in Arizona State Universitys School of Criminology and Criminal Justice.

The Show spoke with him to learn about the conflict.

Read the original:

Law preventing police filming struggles to balance First Amendment with space for officers' duties - KJZZ

President Joe Bidens Philadelphia speech was certainly something to behold. An orchestrated attack on half the citizens of this country. An attempt to classify an entire political party as extremist. In effect, Biden was calling for a one-party state. Its also worth noting that Bidens speech was written for him, by those who effectively control the Biden regime. And that speech was effectively sanctioned by the White Housebecoming, in a very real sense, the official position of the executive branch of our government. If you doubt this, take a look at some of the tweets that were sent out under Bidens official accountsincluding the White House account. And it was only a week earlier that Biden referred to the MAGA philosophy as semi-fascism.

* Click the Save button below the video to access it later on My List.

Follow EpochTV on social media:

Twitter: https://twitter.com/EpochTVusRumble: https://rumble.com/c/EpochTVTruth Social: https://truthsocial.com/@EpochTV

Gettr: https://gettr.com/user/epochtvFacebook: https://www.facebook.com/EpochTVusGab: https://gab.com/EpochTVTelegram: https://t.me/EpochTV

Visit link:

Biden's Censorship Enterprise Is an Assault on the First Amendment | Truth Over News - The Epoch Times

John Compere| Abilene Reporter-News

The Constitution was born Sept. 17, 1787, when signed by delegates to the Constitutional Convention.

Constitution Day is our annual national observance each Sept. 17 - Saturday, this year - commemorating creation of the United States of America and celebrating American citizenship.

Knowledge of our Constitution and its significance begins with the Constitution itself. The Preamble states six secular reasons our nation was founded by and for We the People. The Constitution establishes our secular democratic government.

James Madison, know as the Father of the Constitution," proclaimed this is derived from the superior power of the people. (public speech, June 6, 1788). George Washington, Father of Our Country, wrote The Constitution is a guide which I will never abandon. (public letter, June 22, 1792).

The Constitution provides three separate and equal government branches for check and balance on power. The legislative branch enacts law (Article I), executive branch executes law (Article II), and judicial branch interprets law (Article III).

Article V provides two ways to amend the Constitution:

The 1791 Bill of Rights (first 10 Amendments) and later amendments provide our individual liberties. The 14th Amendment guarantees all persons born or naturalized in the United States are American citizens and citizens of the state where they reside.

Most Americans do not know what our Constitution provides regarding religion (Pew Research). The secular Constitution contains no religious deity reference. Article VI commands no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States lawfully separating religion from government and protecting government from religion.

The 1st Amendment provides our historic trinity of religious liberties :

It lawfully separates government from religion, protects religion from government and requires government neutrality regarding religion.

1st Amendment genesis was the landmark 1785 Virginia Religious Freedom Statute authored by Thomas Jefferson and James Madison that separated church and the state in Virginia and mandated no one shall be compelled to frequent or support any religious worship, place, or ministry whatsoever. Our 1st Amendment also provided a basis for Article 18 of the United Nations Universal Declaration of Human Rights declaring everyone shall have the right to freedom of thought, conscience and religion.

We were the first nation in history established without acknowledging higher authority (emperor, monarch, dictator, deity, religion, scripture, etc). There were no public prayers during the 116 day Constitutional Convention. When independence was declared in 1776, less than 20% of colonists belonged to religion establishments. Today, less than 50% of Americans belong to a church, synagogue or mosque (Gallup) and one in three Americans identify as non-religious or Nones (Pew Research).

Our Constitution created a secular government and not one based on religion. The 1797 Treaty of Tripoli confirmed this to the world - the government of the United States of America is not in any sense founded on the Christian religion. This international legal document was negotiated during 1st President George Washington's administration, unanimously ratified by the US Senate and signed by 2nd President John Adams.

World history records the human harm when governments and religion combined. Separation of church and state is a liberty of free people keeping government and religion separate originating during the European Age of Enlightenment. Most Americans (73%) agree religion should be separate from government (Pew Research). Jesus even separated government and religion (Matthew 22:21; Mark 12:17).

It is important to note Native-American contribution has been officially acknowledged -the confederacy of the original Thirteen Colonies into one republic was influenced by the political system developed by the Iroquois Confederacy as were many of the democratic principles which were incorporated into the Constitution itself. (100th US Congress Resolution).

America has endeavored 235 years establishing and expanding individual liberties for Americans.

We are one nation under our Constitution and it is the Constitution in which we must trust. We can celebrate with patriotic pride our American Constitution and citizenship.

John Compere lives in Callahan County.

Go here to see the original:

Light the candles! Our American Constitution is 235 years old - Abilene Reporter-News

This calendar is updated every Monday. You can always find it at inquirer.com/kidscalendar.

Summer has moved on. On Sept. 18, so too will the ballyhooed Harry Potter exhibit at the Franklin Institute and the Doc McStuffins exhibit at the Please Touch. (Catch them while you can.) Then, head to Baltimore Avenue for its famous Dollar Stroll, Penns Landing for Mexican Independence Day, the Constitution Center and the Kimmel for event-packed chances to explore civics, culture, arts and more.

READ MORE: Submit an event to our calendar

(Food / music / community / free) Its a block party and then some when merchants along this West Philly thoroughfare serve their specialties at pre-inflation prices, and neighbors come out to ask each other: How was your summer? All ages. (Sept. 15, 5:30-8:30 p.m., Baltimore Ave., 43rd to 52nd Streets, universitycity.org)

(Civics / free) To celebrate the U.S. Constitutions 235th birthday, the NCC hosts two events for kids. On Friday at noon, catch an in-person and livestreamed kids town hall about the First Amendment, featuring actors portraying Ben Franklin, Frances Ellen Watkins Harper, James Madison, and Dora Lewis. Saturday at noon, author and activist Karen Korematsu explores her fathers legacy of resisting Japanese internment and hands out some free copies of her book, Fred Korematsu Speaks Up. Ages 8-15. (Free, Sept. 16 & 17, 525 Arch St., constitutioncenter.org)

(Movie / free) Your kids might not recognize the voices in this Universal reprise Bono? Whos Bono? but theyre sure to recognize their favorite animal pop stars. Cheer them on in this latest installment of the ear-wormy animated film from the lawn of this Logan Square pocket park before the weather turns. Ages 6-12. (Free, Sept. 16, 7-9 p.m., 210 N. 18th St., centercityphila.org)

(Arts / free) Name a major arts organization in Philadelphia, and chances are, theyre participating at this four-hour tribute to the arts. This is the time and place to expose your little ones to jazz, orchestra, ballet, modern dance, and more. All ages. (Free, Sept. 17, 11 a.m.-3 p.m., 300 S. Broad St., kimmelculturalcampus.org)

(Culture / free) Cinco de Mayo is not Mexicos equivalent of July Fourth. Friday, Sept. 16 is, and anyone who hasnt celebrated on that day or wants to extend the celebration is welcome to partake in song, dance, and amazing tortas on the Delaware riverfront. All ages. (Free, Sept. 18, 2-8 p.m., 101 S. Columbus Blvd., delawareriverwaterfront.com)

Go here to see the original:

5 things to do with kids in Philly this week - The Philadelphia Inquirer

PHOENIXChief Michael Sullivan is now on the job with the Phoenix Police Department, replacing Jeri Williams who is retiring.

It's a critical time for the department, which is facing a civil rights investigation by the U.S. Department of Justice.

This comes after ABC15s Politically Charged investigation, which exposed an effort by Phoenix police and the Maricopa County Attorney's Office to falsely charge police protesters as gang members.

People with Mass Liberation Arizona and other community leaders made their voices heard, on Chief Sullivans first day, sending out a clear message to the new interim chief.

Our community will not tolerate another lying Chief. they said.

Patricia Pagliuca is calling former Chief Jeri Williams' retirement a win for the community.

Chief Williams allowed her officers to lie, falsify evidence, and provide false testimony under oath in order to charge protestors as gang members. All while colluding with prosecutors in the Maricopa County Attorneys office, said Pagliuca.

Bruce Franks Jr. was among protestors who say they were arrested and charged with crimes back in 2020.

Little did I know when we came down here to exercise our first amendment right, we would be targeted. We would be brutally arrested. We would be given false charges, Franks Jr added.

Though, they say the injustices dont stop there.

Top police, including Chief Jerri Williams herself, were caught using the Signal App to destroy evidence from public records, said Pagliuca.

These are acts that were exposed recently by ABC15, as part of our Politically Charged series.

Now, Chief Michael Sullivan takes over at Phoenix Police during an active Justice Department investigation for alleged civil rights violations.

Today Michael Sullivan takes over the role of Police Chief and Jerri Williams will attempt to sneak out the back door. We are here to make a clear statement that we will not allow that to happen, "said Franks Jr.

Sullivan served two decades with the Louisville Police Department, before joining the Baltimore Police Department in 2019.

As Deputy Commissioner of Compliance, he was in charge of reforms put in place following a Department of Justice investigation there.

Another police department just like Phoenix PD that is riddled with corruption, and violence, and scandal. Interim police chief for cop cover ups, said Pagliuca.

The group says they hope to see change now that hes in charge in Phoenix.

We will not tolerate empty words of reform or further words of collusion with other law enforcement agencies to block accountability for the harm they have caused, Pagliuca added.

ABC15 reached out to Phoenix PD asking about the demands some community members has for Chief Sullivan, and the call for former Chief Williams to be held accountable for her actions.

The department responded with the following:

"We were aware there was a small news conference next to police headquarters, however, we did not attend. We respect everyones right to free speech and I invite you to visit our department webpage where you can learn about all the ways we are committed to transparency and accountability."

More here:

Interim Phoenix PD chief first day on the job, left with DOJ investigation - ABC15 Arizona in Phoenix

The fire on the USS Bonhomme Richard burned from the lowest decks to the wheelhouse (USN)

PublishedSep 12, 2022 7:55 PM by Megan Rose, ProPublica

This article was first published by ProPublica and may be found in its original form here. ProPublica's subscription service may be found here.

Despite a 2016 law requiring more transparency of court-martials, the U.S. Navy is refusing to release nearly all court documents in a high-profile case in which a sailor faces life in prison.

Seaman Recruit Ryan Mays, 21, has been charged with aggravated arson and hazarding a vessel in the 2020 fire that destroyed the USS Bonhomme Richard. Mays has maintained his innocence.

On July 12, 2020, a fire started on the amphibious assault ship as it was moored at Naval Base San Diego and raged for more than four days. The Navy was not able to put the fire out until the ship was so badly damaged that the service had to scrap it, a more than $1 billion loss.

Although the Navy has accused Mays of starting the fire, the services eight-month investigation found plenty of blame to go around. A more than400-page reportconcluded that leaders, from those on board the Bonhomme Richard all the way to a three-star admiral, had failed to ensure the ships safety and allowed it to become a fire hazard. Fire response was also grossly mismanaged by leaders who had little understanding of how it should have worked, the Navys investigation found. Top Navy leaders called the dayslong blaze preventable and unacceptable.

Last week, the military judge in Mays casedenied requestsmade separately by the defense and ProPublica to make the records public. Cmdr. Derek Butler sidestepped the defenses claims that the government was violating Mays Sixth Amendment right to a public trial and ProPublicas assertions of the First Amendment. Butler didnt address the constitutional issues at hand and instead said he didnt have the authority to release the records.

In July, ProPublica had first requested from the Navys Office of the Judge Advocate General all court records that have already been filed and discussed extensively in open court in the Mays case. That office denied access to all but two records already made public, refusing to release any more until the court-martial concludes and only if Mays is found guilty. The court-martial is scheduled to begin Sept. 19.

In August, ProPublica, along with Paul LeBlanc, a retired Navy judge and lawyer,filed a motionasking Butler to release the documents, arguing that the First Amendment requires the government to make the records public. ProPublica also argued that the public has a strong interest in understanding how and why the government is prosecuting Mays and in ensuring he receives a fair trial.

Theyre attempting to put someone in prison for a very long time, and what theyre filing is hidden from the people, LeBlanc said. These documents are filed on behalf of the people of the United States, and the people of the United States should have the same right to see them and know what the government is doing on their behalf as they do in federal court.

How can anybody have any sort of trust and confidence in a system if it wont let them read what prosecutors are saying on their behalf?

In 2016, Congress passed a law requiring the military to make court-martial dockets, records and filings accessible to the public. The law was prompted in part by the militaryslack of transparency in sexual assault cases. Congress goal was to make court-martial records as available to the public as federal court records are.

The law specifically states that the military should facilitate access during pretrial, trial, post-trial, and appellate processes. But the Department of the Defense has decided that the law only applies once a court-martial is over. It is simply too hard to turn court-martial records over to the public while a trial is happening, Capt. Jason Jones, the prosecutor in the Mays case,wrote in his briefasking the judge to deny records to the public. Military courts dont have a clerk to coordinate records, and unlike civilian courts, which are in one place, military courts have to operate in a fluid environment, such as a war zone, he said.

Butler also cited the 2016 law aimed at increasing transparency as why he didnt have authority to release the records. He wrote that the law did not explicitly grant courts the power to release records but rather the secretary of the defense. He did not address ProPublicas argument that he has the authority and obligation to release the records under the First Amendment, which Congress cannot take away.

ProPublica Deputy General Counsel Sarah Matthews said the news organization disagreed with Butlers interpretation of the law and would next ask the top lawyer for the Department of Defense, Caroline Krass, to clarify what the law requires the services do.

The federal government has released the charge sheet and a search warrant that detailed the Navys case against Mays. By withholding all other records, including those favorable to the defense, the Navy is seeking to shield the record in secrecy to its advantage, Matthews wrote in the motion to Butler.

Records like these are open in every other courtroom in America. These records arent sealed or restricted. They have been discussed in open court, in a proceeding that could send a man to prison, Matthews said separately. The Navy believes it can arbitrarily delay or even deny access completely to these records, something all the more troubling because Congress has passed a law demanding more, not less, transparency from our armed services in cases like this.

Megan Rose, formerly Megan McCloskey, has investigated criminal justice and the military for ProPublica since 2013. She won the 2020 Pulitzer Prize for National Reporting with two colleagues for a series examining how Navy and Marine Corps leadership failed to heed warnings and implement reforms leading up to several fatal accidents.

The opinions expressed herein are the author's and not necessarily those of The Maritime Executive.

More here:

U.S. Navy Withholds Court Records in Bonhomme Richard Arson Case - The Maritime Executive

This week, the Ninth Circuit addresses the immediate appealability of orders invalidating class action opt-outs, and considers whether a decision not to renew a contract is an adverse employment action for purposes of a Title IX discrimination claim.

AGUILAR v. WALGREEN CO.

The Court dismisses for lack of jurisdiction an interlocutory appeal from an order invalidating class members elections to opt out.

The panel:Judges S. R. Thomas, Bea, and H. Thomas, with Judge Bea writing the opinion.

Key highlight: Appellants cite no caselaw establishing that opt-out invalidation orders are not amenable to review after final judgement.Indeed, to the contrary, in the two appellate cases cited by Appellants that reviewed orders invalidating class action opt-outs, these reviews occurred after a final judgment was reached in those cases.

Background: Law firms Gallo LLP and Wynne Law Firm (Gallo/Wynne) sought to represent a putative class of store managers in a wage-and-hour action against Walgreens in California state court.After their action was stayed in favor of another class action brought by different attorneys, Gallo/Wynne began sending mailings to Walgreens store managers, seeking to have them abandon the class action and join a new mass action that Gallo/Wynne had filed.After the parties to the class action settled, Gallo/Wynne then sent another letter to many members of the class urging them to opt out.

After 102 class members opted out, class counsel asked the district court to invalidate any opt-outs from individuals who had received Gallo/Wynnes purportedly misleading letter.The district court granted the request, providing these individuals with a new opportunity to opt out.At the urging of Walgreens, the district court then modified its order to cover all individuals represented by Gallo/Wynne, and not just those who had received the letter.It approved a corrective notice stating, among things, that aspects of the Gallo/Wynne letter had not been true, and that Gallo/Wynne have a financial interest in having you opt out of the Settlement.Gallo/Wynne, on behalf of their clients, filed a notice of appeal.

Result:The Ninth Circuit dismissed for lack of appellate jurisdiction.As it explained, under the collateral order doctrine, the Court had jurisdiction over orders that (1) conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action, and (3) [would] be effectively unreviewable on appeal from a final judgment.Here, the Court held, the third requirement was not satisfied.The appellants themselves cited two cases in which courts had reviewed orders invalidating class-action opt outs on appeal from final judgment.And the appellants could identify no important interest that would be lost if they were required to wait until then, as the challenged order places no limitations whatsoever on Gallo/Wynnes ability to communicate or contract for legal services with their clients moving forward.That fact distinguished a recent Sixth Circuit decision entertaining an interlocutory appeal from a similar opt-out order, which had enjoined the firm from communicating with class members about the claims without court approval, thereby threatening the irreparable harm of depriving the firm of the First Amendment freedom to communicate with class members.The Court also declined to issue a writ of mandamus, explaining that the appellants could not show that the district courts order was clearly erroneous as a matter of law.

MACINTYRE v. CARROLL COLLEGE

The Court holds that the nonrenewal of an employment contract qualifies as an adverse employment decision sufficient to make out a prima facie case of Title IX employment discrimination.

The panel:Judges Christen, Lee, and Forrest, with Judge Lee writing the opinion.

Key highlight: [C]ommon sense suggests that an employee may be dissuaded from alerting the company of discrimination if his or her contract may not be renewed as a result of it."

Background: Carroll College employed Bennett K. MacIntyre as a Community Living Director and then as Associate Athletics Director, and it paid him a stipend for coaching for the schools golf team.In 2016, MacIntyre reported potential Title IX violations to the schools HR director, and alleged workplace harassment, hostile work environment, and discrimination involving interim Athletic Director Kyle Baker and college president Tom Evans.A month later, Baker gave MacIntyre a poor performance review.MacIntyre filed a formal grievance and the school settled, agreeing to expunge the negative review, pay $15,000 in back pay, and hire MacIntyre as a full-time golf coach under a two-year contract.Carroll College soon started experiencing budgeting problems, and the school declined to renew MacIntyres golf coaching contract.MacIntyre filed another grievance alleging retaliation for complaining about Title IX violations, and then filed suit.The district court granted summary judgment for Carroll College, holding that MacIntyre failed to allege a prima facie case of retaliation because, in its view, the nonrenewal of the contract was not an adverse employment action.

Result: The Ninth Circuit reversed, holding that [t]he district court erred when it concluded that the nonrenewal of MacIntyres two-year contract was not prima facie evidence of an adverse employment action.As the Court explained, [a]n adverse employment action is one that well might have dissuaded a reasonable [person] from making or supporting a charge of discrimination, and includes a wide range of conduct such as reassigning job duties or giving an employee more dangerous work.The nonrenewal of an employment contract is comparably likely to deter a reasonable employee from reporting discrimination, the Court reasoned.And unlike Fourteenth Amendment cases relied upon by the district court, the Ninth Circuit has never required adverse employment actions to rise to the level of a denial of an entitlementrather, even discretionary decisions, such as the non-renewal of a contract, may count.

[View source.]

Read the original post:

This Week at the Ninth: Class Opt-Outs and Non-Renewed Contracts - JD Supra

In Franklin, Tennessee, the sun may be setting on residents' ability to participate in public demonstrations free of government interference. As part of city guidance that is "intended to facilitate the safe exercise of First Amendment rights," Franklin officials explain, they are significantly restricting when, where, and how residents may participate in any "public gathering and expression event."

Per an ordinance passed unanimously by the Franklin Board of Mayor and Aldermen (BOMA) last week, the city will not grant permits for any public gathering and expression events taking place after dark, nor will any event that does not require a permit be allowed to take place in the city after dark. The ordinance also prohibits expression events from taking place in the Downtown District between 5 p.m. on Fridays and 7 a.m. on Saturdays, as well as between 5 p.m. on Saturdays and 7 a.m. on Sundays.

Franklin's code defines public gathering and expression events as instances of "noncommercial public assembly" that take place on public property, are "likely to obstruct" vehicular or pedestrian traffic, or have over 20 participants. The ordinance also introduces restrictions targeting "events which require amplification or which occur more than once per month (regardless of size)," according to a background document prepared by city officials. Violations of the ordinance will carry a misdemeanor charge resulting in a citation.

"We as the city have the ability to navigate and to manage time, place and manner that those demonstrations happen," City Administrator Eric Stuckey said in June when the rule changes were first being considered. The city's background document claims that the ordinance will ensure Franklin "provides protection to all who wish to exercise" their First Amendment rights.

In 2019, BOMAadopted a structure to permit public gathering and expression events. That move followed white supremacist rallies in Charlottesville, Virginia, and nearby Shelbyville, Tennessee. "We saw it as a way to facilitate the exercise of First Amendment rights," said Stuckey of the permitting structure.

Franklin officials first floated the new restrictions on expression events at a June 14 meeting. City Attorney Shauna Billingsley outlined the ban on demonstrations after dark, saying, "We really don't think that's a safe thing for really anyone." The proposed restrictions originally included a ban on expression events from 5 p.m. on Fridays through 7 a.m. on Mondays in the downtown historic district, though this was ultimately scaled back.

"The reason for that" weekend ban, Billingsley explained, was that "it seems as though after work on Friday, our downtown turns into something different. It's much more shopping and eating, more social events and those kinds of things. So we're not sure that protests in the heart of downtown during the weekend should be permitted." She also stressed that "safety is important," noting that "police officers can't really watch over people in the dark."

As much as city officials stress this ordinance will protect First Amendment rights, it raises obvious concerns on that front. "Threatening misdemeanors for expressive activity after dark is going to put Franklin [on] a collision course with the First Amendment," says Adam Steinbaugh, attorney at the Foundation for Individual Rights and Expression. "Municipalities can impose content-neutral limits on the time, place, or manner of expression, but those limits have to be reasonable and this isn't." For one, he explains, "not everyone can protest during the workday and a lot of expressive activity necessarily occurs in the evening."

What's more, the ordinance's broad wording may come to target completely innocuous expression events. "You want to tell me the city of Franklin wants to issue misdemeanors for Christmas carolers or people holding a candlelight vigil?" asks Steinbaugh. The potential for uneven enforcement also lingers. Steinbaugh offers a hypothetical: Will Franklin police be more likely to write up 21 Christmas carolers or 21 people protesting the police if both groups are violating the ordinance?

"The sun doesn't set on the First Amendment," says Steinbaugh. "Franklin's leaders should reconsider."

Link:

Tennessee Town Restricts Protests, Says It's Protecting First Amendment - Reason