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

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

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

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

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

Jack Greiner Published 11:48 a.m. ET July 7, 2020 | Updated 11:48 a.m. ET July 7, 2020

The parties in litigation over the publication of a tell-all book written by Donald Trumps niece each got a partial victory in a recent decision by a New York trial court. But the ultimate losers are the members of the Trump family seeking to stop publication of the book later this month.

The issue in the case is a non-disclosure agreementthat the family of Fred Trump executed in connection with Fred Trumps estate. Fred Trump was the brother of Donald, Robert and Mary Trump. The books author is Mary Trump, Freds daughter and the niece of Donald, Robert and Mary.

When the family settled Fred Trumps estate in 2001 (he died atage42 from complications arising from alcoholism) the descendants (including Freds daughter Mary) signed an agreement prohibiting them from publishing a book about the family relationships. Specifically, the agreement provided:

[Mary Trump] shall not disclose any of the terms of this Agreement and Stipulation, and in addition shall not directly or indirectly publish or cause to be published, any diary, memoir, letter, story, photograph, interview, article, essay, account, or description or depiction of any kind whatsoever, whether fictionalized or not, concerning their litigation or relationship with the Proponents/Defendants or their litigation involving the Estate of FRED C. TRUMP and the Estate of MARY ANNE TRUMP, or assist or provide information to others in connection therewith. . . . In the event such breach occurs, [Mary Trump], as well as their counsel, hereby consent to the granting of a temporary or permanent injunction against them (or against any agent acting in their behalf) by any court of competent jurisdiction prohibiting them (or their agent) from violating the terms of this Paragraph.

On June 15, 2020, Ms. Trump announced the publication of a book entitled Too Much and Never Enough: How My Family Created the Worlds Most Dangerous Man, which is scheduled for release on July 28, 2020. On June 30, Robert Trump, Marys uncleand Donald Trumps brother obtained a temporary restraining order from a New York Probate Court which prohibited Ms. Trump and her publisher Simon & Schuster, from publishing, printing or distributing any book or any portions thereof including but not limited to the book entitled: Too Much and Never Enough, How My Family Created the Worlds Most Dangerous Man, in any medium containing descriptions or accounts of [Ms. Trumps] relationship with [Robert Trump], Donald Trump, or Maryanne Trump Barry.

Mary Trump and Simon & Schuster asked a New York trial court to vacate the TRO. The trial court refused Marys request to vacate the TRO, at least for the time being. It found that while Mary Trump generally has a First Amendment right to publish her thoughts, she also has a right to enter a contract restricting that right. The court noted, however, that the interests underlying the non-disclosure agreement could shift over time so that the public interest in the book could outweigh the contractual interests. As the court noted, the legitimate interest in preserving family secrets may be one thing for the family of a real estate developer, no matter how successful; it is another matter for the family of the President of the United States. The court noted that it may be necessary to review the book in camera before making a final ruling on the restraining order. But for now, the court kept the order as to Mary in place.

But the court took a different view toward Simon & Schuster. It noted that Simon & Schuster was not a party to the contract, and thus never agreed to the non-disclosure terms. The court also rejected the argument that Simon & Schuster is Marys agent and thus comes under the contracts language permitting an injunction against Marys agent. The term agent in the law means one who acts on behalf of another person and at that persons direction. Typically an author employs an agent to negotiate with the publisher. This demonstrates that the publisher and the author are on opposite sides of contract and neither is the agent for the other. Given that Robert Trumps only basis for the restraining order was the contract, there was no basis to restrain Simon & Schuster.

This decision may end the effort to stop the release of the book. Once the book is released, the horse has left the barn, as the Trump Administration learned in its efforts to stop the publication of John Boltons book. Of course, all is not lost for Robert Trump. He can seek monetary damages against Mary. But in all likelihood, the public will be reading her book at the beach later this summer.

Jack Greiner is managing partner of Graydon law firm in Cincinnati. He represents Enquirer Media in First Amendment and media issues.

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Strictly Legal: Partial Victory for the First Amendment in Trump Book Dispute - The Cincinnati Enquirer