A federal judge invoked Stranger Things, Immanuel Kant, and Friedrich Nietzsche in dismantling the states defense of Gov. Ron DeSantis Stop Woke Act, declaring the effort to constrain workplace sensitivity training violates the First and Fourteenth Amendment.

In a 44-page opinion, U.S. District Judge Mark Walker in Tallahassee ruled that the law formally, the Individual Freedom Act, or IFA amounts to an attempt by the state of Florida to impose its preferred positions about the existence of systemic racism and sexism on the workplace and public schools.

DeSantis signed the measure in April.

Floridas legislators may well find plaintiffs speech repugnant. But under our constitutional scheme, the remedy for repugnant speech is more speech, not enforced silence. Indeed, it is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, Walker wrote.

If Florida truly believes we live in a post-racial society, then let it make its case. But it cannot win the argument by muzzling its opponents. Because, without justification, the IFA attacks ideas, not conduct, plaintiffs are substantially likely to succeed on the merits of this lawsuit.

The judge also ruled, in an opinion handed down on Thursday, that the law is impermissably vague under the Due Process Clause of the Fourteenth Amendment because its definitions of whats objectionable are too vague, even unintelligible.

Walker ruled in a complaint filed by Honeyfund.com Inc., a technology company in Clearwater with 16 employees, and Team Primo, a Black-owned Ben & Jerrys franchisee in Clearwater Beach and Tampa, that wanted to conduct sensitivity training, and by a consultant who conducts the training.

The named defendants were DeSantis, Attorney General Ashley Moody, and members of the Florida Commission on Human Relations who would enforce the law, although the injunction doesnt apply to the governor because he doesnt directly enforce the law.

The decision doesnt discuss the laws application to schools, since the plaintiffs didnt raise that matter.

Walker noted that this was not the first DeSantis initiative blocked on First Amendment grounds, citing as one example the governors bid to punish technology and social media companies.

Nikki Fried, Floridas agriculture commissioner and candidate for Democratic nomination for governor, praised the ruling in a tweet.

Freedom from uncomfortable truths is not freedom its ignorance. Limiting speech of businesses and educators is not freedom its censorship. Attacking diversity is not freedom its oppression. I welcome Judge Walkers ruling in defense of freedom of speech in our state.

Thats where the science fiction show comes in.

In the popular television series Stranger Things, the upside down describes a parallel dimension containing a distorted version of our world. Recently, Florida has seemed like a First Amendment upside down. Normally, the First Amendment bars the state from burdening speech, while private actors may burden speech freely. But in Florida, the First Amendment apparently bars private actors from burdening speech, while the state may burden speech freely, Walker wrote.

Now, like the heroine in Stranger Things, this court is once again asked to pull Florida back from the upside down.

The law, referred to in the ruling by its initials, IFA, bars employers from conducting workplace trainings that allegedly promulgate eight disfavored concepts. For example, that:

Walker concluded that, in addition to its constitutional flaws, the measure violates the Florida Civil Rights Act of 1992, patterned under Title VII of the Civil Rights Act of 1964. Both ban employment discrimination based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status.

In the end, defendants suggest that there is nothing to see here. They say the IFA does nothing more than ban race discrimination in employment. But to compare the diversity trainings plaintiffs wish to hold to true hostile work environments rings hollow. Worse still, it trivializes the freedom protected by Title VII and the FCRA to suggest that the two are the same, he wrote.

Walker rejected the states argument that the law restricts conduct, not speech that is, forcing employees to attend training sessions. He reasoned that the law forbids only mandatory attendance at trainings endorsing the viewpoints that the law deems unacceptable employers could require workers to read a book complaining about woke culture, for example, but not endorsing critical race theory.

Worse still, a nonprofit corporation devoted to promoting the idea that white privilege exists could not hold a required meeting at which it endorses the concept of white privilege. But a nonprofit holding the opposite view could freely hold meetings criticizing the concept of white privilege, Walker wrote.

The bottom line is that the only way to determine whether the IFA bars a mandatory activity is to look to the viewpoint expressed at that activity to look at speech. Plainly, the IFA regulates speech, he continued.

He elaborated in a footnote:

The plaintiff companies intend the trainings to send a message about their values. And people would understand as much. Plaintiff companies incur significant costs to hold these trainings, not just the cost of paying someone to conduct them but also the cost in lost productivity from every employee halting work and attending. Given the high financial cost of holding a mandatory training, it is very likely that outsiders would interpret holding such trainings as sending a message about the companys priorities.

Walker rejected the states argument that Title VII, the federal law banning workplace discrimination with respect to compensation, terms, conditions, or privileges of employment, might pose an unconstitutional restriction on speech.

That prohibition on conduct includes a bar on requiring people to work in a discriminatorily hostile or abusive environment. In turn, to be sure, it can be mostly speech that creates this environment, but only when such speech is both objectively and subjectively offensive and when it is sufficiently severe or pervasive, Walker wrote.

He cited the example of a white worker dressing in a gorilla suit to mock Black employees the day before Juneteenth. (It happened.)

The IFA is the inverse. It targets speech endorsing any of eight concepts and only incidentally burdens conduct. Even the slightest endorsement of any of the eight concepts at any required employment activity violates the statute; the IFA requires no evidence that the statement be even subjectively offensive. Nor does the IFA require that the statement create a severely or pervasively hostile work environment. Thus, the IFA, by design, provides no shelter for core protected speech.

The state claimed the authority to prevent employers from foisting speech that the state finds repugnant on a captive audience of employees.

Walker respinded: Not so. The First Amendment does not give the state license to censor speech because it finds it repugnant, no matter how captive the audience.

And even assuming the IFA serves a compelling government interest like prohibiting discrimination it is not narrowly tailored. In large part, this is because the FCRA already prohibited much of what defendants claim the IFA aims to prohibit. For example, a diversity and inclusion training could be so offensive, and so hostile to white employees, that it could create a hostile work environment. That is already illegal as both parties acknowledge.

Many people would object to the concept that members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin, Walker noted.

Of course, the IFA bans much more: such as suggesting that white privilege exists or that people should consider another persons race or sex when interacting with them . In other words, even assuming some concepts are proscribable which they are not the IFA still prohibits the endorsement of many widely-accepted ideas, he wrote.

In sum, the IFA sweeps up an enormous amount of protected speech to ban a sliver of offensive conduct that exists somewhere between the trainings plaintiffs wish to hold and what the FCRA already bars. It is, to borrow a phrase from defense counsel, self-evident. The IFA is not narrowly tailored. And so, the IFA violates the First Amendment.

The state argued it would be OK under the law to discuss critical race theory as an objective concept without endorsing it. (This is where Kant and Nietzsche come in, via a footnote.) But, as a practical matter, an employers discussion of these concepts no matter how objective it may be will invariably lend credence to them, Walker responded.

The IFA is designed to exorcise these viewpoints out of the marketplace of ideas Gov. DeSantis went so far as to call it the STOP WOKE Act at a press conference with children waving anti-critical race theory signs. It thus comes as no surprise that permissible discussion of these concepts turns on objectivity an inherently vague term that fails to give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, Walker wrote.

Accordingly, as this objectivity standard commands the entire statute, the IFA is impermissibly vague in violation of the Due Process Clause of the Fourteenth Amendment.

Read the rest here:

DeSantis loses another First Amendment fight, this one over 'Stop Woke Act' - Florida Phoenix

If theres one group in Kalispell that fully understands the responsibilities, privileges, and implications of the First Amendment, its librarians. Specifically, those at ImagineIF Library: Sean Anderson, Kat Wilson, Starr White, and the former interim director Martha Furman. Last month, they received the Pat Williams Intellectual Freedom Award from the Montana Library Association. Our county library is no stranger to awards, including this one. Two years ago, Connie Behe, former library director, won this very same award. In 2015, ImagineIF bested all the libraries around the state to win Library of the Year.

To me, these awards, and particularly the Pat Williams Intellectual Freedom Award, highlights the principled commitment of these staff members at ImagineIF and how the First Amendment operates in a publically funded library. Freedom of expression encompasses intellectual freedom and a core value of the library profession is the promotion of access to information and leads the defense against censorship. ImagineIFs mission is to provide safe and fair access to books and information.

A public library is a brilliant, complex, evolving, and living institution that promotes and protects intellectual freedom, which means the right to receive information on a wide range of topics from a variety of viewpoints. Libraries provide crucial and often essential services to the community it serves, supporting a wide range of individuals who possess different beliefs, interests, curiosities, and needs.

While the ImagineIF staff members receiving the award are being recognized by their peers for their professionalism and diligence in maintaining its mission, theres a dangerous response brewing in Flathead Valley. Recently, books damaged by a firearm were deposited in the librarys overnight collection bin. The titles didnt belong to ImagineIF. The incident led to a one-day closure of all the librarys branches until law enforcement could assess the situation and evaluate the level of threat. The library staff, Board of Trustees, and local law enforcement determined there was not a threat to public safety, although its not unreasonable to assume that it was an intentional act of intimidation.

Too often across our nation public servants like librarians or teachers face unspeakable violence. And yet they continue to adhere to the guiding standards that define democratic institutions. Access to safe and fair information, including instruction in the classroom and public health and safety measures, shouldnt come with the threat of violence because extremism has infected a few who seek to undermine experts to serve a misguided ideology. We deserve better, our nation deserves better. In fact, democracy demands it.

Democracy also demands a champion, and I applaud Sean, Kat, Starr, and Martha for championing the First Amendment in their response to book challenges. We are all better served by their work and understanding of intellectual freedom and the perils of censorship. After all, no one is forced to read or check out an item housed at the library that expresses views they dont agree with. Thats the freedom offered by libraries, and one worth guarding.

Maggie Doherty is the owner of Kalispell Brewing Company on Main Street.

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Champions of the First Amendment - Flathead Beacon

Earlier this year, Virginia Commonwealth University banned students with fewer than 12 earned credits from joining fraternities and sororities. (Postmodern Studio / Shutterstock.com)

by Zach Greenberg

When FIRE asks universities to protect students free speech rights, weve gotten our fair share of outright denials, curt rejections, and shameless ghosting. But rarely does a public university suggest the First Amendment doesnt really apply to them. Allow us to present Virginia Commonwealth Universitys response to FIREs letter urging VCU to end deferred recruitment.

On Aug. 1, VCU banned students without 12 credits earned at the university from joining fraternities and sororities. FIRE warned the university that deferred recruitment violates students freedom of association, explaining in our July 26 letter that students have the fundamental right to join campus groups. Freedom of association is enshrined in the First Amendment, which protects the right of the individual to pick his own associates so as to express his preferences and dislikes, and to fashion his private life by joining such clubs and groups as he chooses.

Our argument is simple: Students are adults, bestowed with the full array of First Amendment rights, and fully capable of affiliating with a wide variety of organizations on and off campus. If VCU students are allowed to work full-time, play Division I athletics, and devote their energies to more than 500 other campus groups, common sense dictates they should also be able to rush a fraternity or sorority.

Not so, says VCU. According to the university, our letter relies on cases that are not controlling in the Fourth Circuit the United States Court of Appeals for the Fourth Circuit a federal court whose rulings are binding on all state universities in Virginia. VCU claims that none of the cases FIRE cites deal with requirements a university places on students to be eligible to join a fraternity or sorority or other student organization.

Were pretty sure SCOTUS is binding on all states and, by extension, the public universities of those states, like VCU.

Lets check the tape: First, we cite Healy v. James, the seminal United States Supreme Court case establishing the expression and associational rights of student groups. Were pretty sure SCOTUS is binding on all states and, by extension, the public universities of those states, like VCU.

Next, we have Gay Alliance of Students v. Matthews, a case from the Fourth Circuit holding that a universitys denial of recruitment privileges violates students First Amendment rights. In Matthews, the university denied recognition to a student group, Gay Alliance of Students, because, in part, affiliation of individuals with homosexual activist organizations may have adverse consequences to some individuals involved.

The Fourth Circuit firmly rejected this rationale, finding that The very essence of the First Amendment is that each individual makes his own decision as to whether joining an organization would be harmful to him, and whether any countervailing benefits outweigh the potential harm.

VCU cannot ban students from associating with campus groups.

The university that lost the case? Virginia Commonwealth University. In the Fourth Circuit.

Seems like that would be applicable to VCU arbitrarily determining what groups its students can join today. One need not be a lawyer to understand how precedent works.

The dozen other cases we cite see our letter for yourself build the argument that VCU cannot ban students from associating with campus groups. Students have the right to join groups disfavored by the university, such as fraternities and sororities at VCU. As stated in Matthews, VCU cannot prevent students from joining groups merely because doing so may have adverse consequences to some individuals involved.

Whats next? Will VCU ban students who are bad at board games from the chess club? Will it ban unathletic students from playing intramural sports? Will it ban uncreative students from art societies or lactose intolerant students from the Alliance of Milk Drinkers? There is no First Amendment exception for university administrators coercing students for their own good, as courts have decried such paternalistic restrictions on students rights for more than 60 years. Irony abounds as VCU first-semester and transfer students surrender their First Amendment rights upon entering the state boasting the motto Thus Always to Tyrants.

Afford all your students the opportunity to join every campus group.

VCU promised a more detailed response to FIRE by the end of the month and asked if we have anything to add. We are content to rest on the binding legal precedent in our initial letter cases we urge VCUs legal team to read and then apply to its unlawful ban on students joining campus groups.

Beyond that, we have nothing to tell VCU but this: Save yourself the embarrassment of explaining to a judge how Virginia Commonwealth University is not bound by courts in the Commonwealth of Virginia. Afford all your students the opportunity to join every campus group. Uphold the First Amendment by ending deferred recruitment.

FIRE defends the rights of students and faculty members no matter their views at public and private universities and colleges in the United States. If you are a student or a faculty member facing investigation or punishment for your speech,submit your case to FIRE today. If youre faculty member at a public college or university, call theFaculty Legal Defense Fund24-hour hotline at 254-500-FLDF (3533).

Original post:

Does the First Amendment apply to Virginia Commonwealth University? The public university doesn't seem to think so. - Foundation for Individual Rights...

August 19, 2022

Click for PDF

Decided August 18, 2022

Serova v. Sony Music Entertainment, S260736

The California Supreme Court held yesterday that a sellers promotional statements about an artistic work of interest to the public amounted to commercial speech, regardless of whether the seller knew of the statements falsity.

Background: The plaintiff sued Sony under the Unfair Competition Law (UCL) and Consumers Legal Remedies Act (CLRA) on the theory that promotional materials for a posthumous Michael Jackson album misrepresented that Jackson was the lead singer. Sony filed a motion to strike under Californias anti-SLAPP statute, arguing that the plaintiffs UCL and CLRA claims were unlikely to succeed because those statutes target only commercial speech, not noncommercial speech about art protected by the First Amendment.

The Court of Appeal held that the motion should be granted because the plaintiffs claims targeted protected speech that was immune from suit under the UCL and CLRA. It reasoned that the promotional statements about the album related to a public issuethe controversy over whether Jackson was the lead singer on the albumand were more than just commercial speech because they were connected to music. The plaintiffs allegation that the statements were false did not strip them of First Amendment protection, according to the Court of Appeal, because Sony didnt know the statements were false.

Issues: Were Sonys representations that Michael Jackson was the lead singer on Michael noncommercial speech subject to First Amendment protection (in which case Californias anti-SLAPP statute would apply) or commercial speech (in which case the plaintiff could pursue UCL and CLRA claims against Sony)?

Courts Holding:

Sonys representations about the album constituted commercial speech, which can be prohibited entirely if the speech is false or misleading. And those representations did not lose their commercial nature simply because Sony made them without knowledge of their falsity or about matters that are difficult to verify.

[C]ommercial speech does not lose its commercial nature simply because a seller makes a statement without knowledge or that is hard to verify.

Justice Jenkins, writing for the Court

What It Means:

The Courts opinion is availablehere.

Gibson Dunns lawyers are available to assist in addressing any questions you may have regarding developments at the California Supreme Court. Please feel free to contact the following practice leaders:

Litigation Practice

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Related Practice: Media, Entertainment & Technology

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California Supreme Court Holds That Seller's Promotional Statements About Controversial Album Are Commercial Speech Not Subject To Full First...

Its never a good sign when a government launches a policy and instantly decrees that criticism of that policy is not allowed. Its happening in the US right now. This week President Biden signed a bill which, among other things, will pump billions of dollars into the renewable-energy sector. And woe betide the American citizen who queries the bill. Pity the American voter who wonders out loud if it might not be the best idea in the world for an advanced economy like Americas to become increasingly reliant on whimsical wind and solar power. For the Biden administration has already said that seeding doubt about renewables is unacceptable, and might even need to be silenced.

Its called the Inflation Reduction Act. It will do many things, including shake up elements of Americas tax system and lower the cost of prescription drugs. It is also, in the words of Forbes, the most comprehensive US initiative to mitigate climate change yet. It promises to plough $369 billion into energy security and climate-change reduction programmes over the next decade. Renewables will get a massive boost. The White House predicts that, thanks to this act, the US will have 950million solar panels and 120,000 wind turbines by 2030. And it is apparently every Americans duty to nod uncritically along with this revolution in renewables, because any expression of doubt about it could be bad for public health.

That chilling decree came from Gina McCarthy, the White Houses national climate adviser. In June, as this bill was wending its way through the Senate, Ms McCarthy gave an interview in which she called for a crack down on climate-change misinformation, as one headline put it. Theres nothing new in green types dreaming of silencing their opponents, of course. For decades the eco-movement has cynically branded critics of climate-change alarmism deniers and insisted they be deprived of the oxygen of publicity. But what is striking about McCarthys authoritarian disdain for climate-change misinformation is that she says she wants to chase down not only those who supposedly deny the science, but also those who question government policy.

McCarthy says denialism has moved on. Now its not so much denying the problem [of climate change], she says; rather, its seeding doubt about the costs associated with [green energy] and whether they work or not. So weve gone from science denialism to what? Political denialism? Policy denialism? Fossil-fuel companies are using dark money to fool the public about the benefits of clean energy, she says. And apparently, seeding doubt about clean energy is equally dangerous to [climate-change] denial. Asked if such doubts pose a threat to public health, in that they might hamper officialdoms plans to go green, McCarthy said: Absolutely. The solution to such health-harming scepticism? We need the tech companies to really jump in, she said. That is, the social-media giants must do more to thwart the policy deniers.

Welcome to the era of Gina McCarthyism, where officials insist that certain ideas are just too dangerous for public life. It is really worth thinking about the magnitude of McCarthys intervention. As the bill that Biden signed this week was being pored over and discussed by the American peoples elected representatives, this official from the White House was saying that any questioning of clean energy policy is equally dangerous to outright climate-change denial. As the Wall Street Journal points out, the shift from obsessing over science denialism towards fretting about policy denialism represents a move to censorship phase two which is shutting down debate over climate solutions. In problematising discussion about a particular policy, at the exact time that that policy was being weighed up by elected representatives, McCarthy was enforcing a chilling effect on the democratic process.

McCarthys call on Big Tech to jump in raises serious questions about the circumvention of the First Amendment. To the envy of many of us outside observers, the American government is forbidden from restricting freedom of expression. But private companies, on the platforms they own, face no such restraints. They can delete content, hide controversial ideas, unperson people. And its clear that some in the Biden administration are keen to outsource the authoritarian instincts that they are not allowed to act on to their likeminded friends in Silicon Valley. The social-media overlords are increasingly doing the censorious bidding of US government officials intervening in debates on everything from Covid to clean energy. Perhaps those conservative scholars who say Big Tech companies behave as state actors when they censor at the behest of government, and therefore should be sued under the First Amendment, are right.

It isnt just Gina McCarthy. Many in the green elite now openly talk about policy denial. Policy denial is when someone accepts that climate change is happening but [denies] that theres anything that can or should be done, says one observer. Scientific American says modern-day climate denial includes oppos[ing] policy measures to confront the problem. It gives as an example of policy denial Bjorn Lomborgs belief that poverty and access to safe food and drinking water need to be addressed before climate action is even considered. So even to question the prioritisation of climate change above all other issues, even to say Lets fix poverty first, is to be a denialist. This is a blatant effort to demonise criticism, scepticism and debate, which should be the lifeblood of every democracy worth the name.

Eco-censorship has always been fundamentally political. Even when greens said they were only going after people who question the science, really it was an ideological clampdown on heretics who dare to question the hysterical claims and harmful policies of the climate-change lobby. Now, however, its clearer than ever that this is political censorship. Out has gone the handwringing over science denial, in has come the demonisation of policy denial that is, of politics itself. Bidens new bill is not all bad. For one thing it will help to boost the nuclear industry, by investing in both existing nuclear plants and newer, more advanced reactors. But the billions for renewables are questionable. The entire idea of advanced societies turning to unpredictable, unreliable renewables is questionable. And people must be free to say so. It isnt denialism to question government policy its democracy.

Brendan ONeill is spikeds chief political writer and host of the spiked podcast, The Brendan ONeill Show. Subscribe to the podcast here. And find Brendan on Instagram: @burntoakboy

To enquire about republishing spikeds content, a right to reply or to request a correction, please contact the managing editor, Viv Regan.

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The green threat to the First Amendment - Spiked

Youll notice several letters to the editor in todays edition concerning a recent Clay County Planning & Zoning hearing regarding a request for a conditional use permit that would allow a housing development to be constructed along a stretch of the Missouri River near Clay County Park.

I was unable to attend the hearing it was held on the Plain Talks press day and the meeting wasnt streamed on Zoom so that it could later be viewed on the countys YouTube channel.

I do, however, have a very brief message for county commissioners, for they will be the next local governing body to act on the conditional use permit: Be Prepared.

The letter writers all indicate the same thing: There were lots of concerned people at the hearing so many that they all couldnt fit in the countys meeting room at the courthouse and many people had to strain to hear what was going on from the hallway.

It also appears that the meeting wasnt conducted in a fair manner and thats what Id like to talk about today, because this is IMPORTANT.

Two significant things happened at the hearing, according to letters weve received:

1) The planning and zoning board approved the conditional use permit.

2) The planning and zoning board violated the First Amendment rights of a number of Clay County citizens.

Ive been doing this newspaper thing for over 40 years, so I hold the First Amendment near and dear. The First Amendment is more about freedom of the press, however. It grants us freedom of speech, a right thats especially important when citizens wish to vocally share a message to members of governing bodies.

Most government meetings in Vermillion are open to the public and they reserve a public comment time for citizen commentary on issues. The Vermillion City Council has been great in guaranteeing that citizens have that opportunity to voice their concerns. The Vermillion School Board, likewise, does an excellent job of doing their work out in the open and welcoming citizen input.

The narrative shared by letter writers this week commonly states that the planning and zoning board heard from an attorney representing those who favor the granting of the conditional use permit. The board heard comments from some of the people who oppose the housing development along the river.

The body then allowed the attorney representing the developers to speak once again and refute many of the views shared by Clay County citizens.

In other words, errors were made.

Most of us arent First Amendment scholars. Thats why organizations like the Citizen Advocacy Center exist. The group, based in Illinois, is committed to:

Make government more accountable to the people by increasing democratic protocols and by developing and empowering the voice of citizens

Further the citizen's understanding of civic tools and public skill in using these tools for societal problem solving

When public bodies write the rules that govern public comment periods, they need to remain aware of the First Amendment rights of those who wish to speak during that public comment time. While lawful public comment policies may vary, the Citizen Advocacy Center recommends the best practices for a welcoming public comment policy include protecting political speech.

One way that can occur is for the public and the Clay County Commission, which serves the public, to work together when, in the near future, the commission will take action on this conditional use permit.

There likely are people who are planning to attend the county commission meeting and address commissioners at the public meeting when the conditional use permit is on the meetings agenda. We suggest that they let County Auditor Carri Crum know NOW of their intent to be there to speak.

That will allow the county commission to prepare for the conditional use permit hearing in a manner that properly protects citizens First Amendment rights. By knowing how many speakers it will face before its meeting, the commission can prepare to put a reasonable time limit in place for receiving public input.

The Citizen Advocacy Center recommends that a public body limit public comment to both a specific time frame for the entire public comment period, and per speaker. In that spirit, we suggest that the county commission and members cooperate before the hearing. By knowing how many people wish to speak, the commission can, in advance, pencil out a time period to allow citizens input.

We suggest taxpayers be given five minutes each to address the commission. Should commissioners know that at least 12 people wish to speak on the topic of the permit, they need to devote at least an hour for that input to take place. Just prior to the meeting, it would best serve the public for the commission to expand that time frame a bit.

For example, the governing body may know that 12 people plan to speak because they gave advance notice and therefore will need to schedule an hour for that to occur. What may be uncertain, however, is the number of people who either didnt know advance notice is desired or didnt have the opportunity to provide such notice.

Those unknown people still have a First Amendment right to address the commission and the governing body must set aside time for them, too. That can best be accomplished by, again, working together to get a head count of the people who wish to speak at the hearing. Something as simple as a sign-up sheet at the meeting can allow the commission to accomplish that goal.

There are other things the county commission should expect at this very moment and they should BE PREPARED. They should plan to accommodate the people they serve.

That means finding a larger space to hold this hearing so that all interested citizens can at least fit in the room, let alone participate. It also means continuing the normal practice of offering a video stream of the meeting, even though the meeting may be held in a different than normal place.

It all boils down to this: When a government decides to offer a public comment period at an open meeting, it provides that citizens may exercise their First Amendment rights. Government officials can limit comments to the relevant subject matter, control disruptive or overly repetitive speakers and impose reasonable time, place and manner restrictions on speech.

However, when government officials create a public-comment forum, they have created a limited public forum in which greater free-speech protections apply. The government may not silence speakers on the basis of their viewpoint or the content of their speech. The government must treat similarly situated speakers similarly.

In essence, the government must live up to the values embodied in the First Amendment.

It appears the Clay County Planning & Zoning Board did not live up to those values. We expect the Clay County Commission to not ever make the same mistake of denying citizens rights.

We expect the county commission to prepare to always protect those rights -- especially in the future when this conditional use permit hearing is held.

See the article here:

County Expected To Protect First Amendment Rights | Opinion | plaintalk.net - Vermillion Plain Talk

California church wins court battle over COVID fines

Ainsley Earhardt speaks with Pastor Mike McClure of San Jose's Calvary Chapel and constitutional attorney Mariah Gondeiro of the Advocates for Faith & Freedom non-profit to hear about their victory against COVID mandates.

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A California appeals court dropped nearly $200,000 in fines for a San Jose church that came under fire for violating COVID-19 restrictions on indoor gatherings during the height of the pandemic.

Mike McClure, pastor of Calvary Chapel, and constitutional attorney Mariah Gondeiro detailed the experience on "Fox & Friends" Thursday, relaying what they consider a victory for religious freedom.

"It's a blessing for the First Amendment," McClure told host Ainsley Earhardt.

CALIFORNIA CHURCH THAT WAS FINED OVER $200K FOR DEFYING COVID-19 RESTRICTIONS GETS FINES DROPPED

Pastor Mike McClure, from Calvary Chapel San Jose, speaks during a press conference outside of Santa Clara Superior Court in downtown San Jose, Calif., on Tuesday, Dec. 8, 2020. (Nhat V. Meyer/MediaNews Group/The Mercury News via Getty Images)

"Pastors across the country, I think we need to realize that we have this freedom that God's given us, and we're needed more today than ever with the hope, truth, love"

Gondeiro said the appellate court elected to drop the charges because the U.S. Supreme Court had already established a legal precedent on the issue.

"The Supreme Court has been very clear over the last year that these orders violated the First Amendment. This is a religious freedom case, and they violated the First Amendment because they discriminate against religion," she said.

SUPREME COURT DENIES NEVADA CHURHC'S APPEAL OF ATTENDANCE RESTRICTION AMID CORONAVIRUS PANDEMIC

Supporters of Calvary Chapel San Jose wave to cars outside of Santa Clara Superior Court in downtown San Jose, Calif., on Tuesday, Dec. 8, 2020. (Nhat V. Meyer/MediaNews Group/The Mercury News via Getty Images)

"The county as well as the state of California allowed a lot of essential businesses or businesses that they deemed essential to stay opened, but not this church."

Gondeiro went on to restate the court acted in accordance with judicial precedent by dropping the fine.

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The legal struggles for McClure are not over yet, however. The county is still attempting to slap him with a $2.8 million fine for the pandemic-era violations.

"If it's jail time, I'm ready for whatever. Honestly, I'm not wanting to fight the county. I think that they just don't understand the Constitution," he said.

"The fees are something I have honestly not thought about."

In a press release, Gondeiro said she expects the church to have a "complete victory" in that case as well.

Taylor Penley is a production assistant with Fox News.

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California church that defied COVID restrictions wins court battle: 'A blessing for the First Amendment' - Fox News

The ordinance bans soliciting from people within 50 feet of some public spaces including Town Hall, the Joe Eakes and Ocean Front parks, The Community Center banks and financial institutions, and beach access points. (PCD).

KURE BEACH A Pleasure Island town overhauled its solicitation amendment on Monday, removing its permit process and offering clearer guidance on prohibited areas.

The most notable additions to the new Kure Beach ordinance, which restricts peddling, solicitation and begging in certain public spaces, are the ban on solicitation in an aggressive manner and a fine for violations.

During the meeting, Town Attorney James Eldridge said the rewrite lists specific public spacessuch as beaches and right-of-ways where those activities are barred and eliminate its discretionary permit process. Previously, solicitors would have to gain town permission to apply to solicit services or beg for money.

Council passed the amendment with unanimous approval.

However, it raises questions about the legality of its contents under the First Amendment. Panhandling is protected in public spaces, including roads and sidewalks, per 2015s U.S. Court of Appeals Fourth Circuit case, Reynolds v. Middleton. Panhandling is considered free speech and municipalities would need to provide a burden of proof to enact restrictions, which are required to be narrow and specific in scope.

In July, the City of Wilmington discussed initiatives to deter solicitation since it cannot ban it, despite a prohibition ordinance in its books. It essentially decided to increase funding for social services and encourage people to donate to nonprofits, rather than directly give money to people on the street.

Municipalities can regulate panhandling that intimidates, threatens or causes physical harm to the public. Under North Carolina statute, law enforcement is within its rights to cite someone for aggressive behaviors while panhandling.

Kure Beachs new ordinance identifies six categories of whats considered aggressive:

The ordinance bans soliciting from people within 50 feet of some public spaces including Town Hall, the Joe Eakes and Ocean Front parks, The Community Center banks and financial institutions, and beach access points. Also, people cannot solicit operators of cars on a public street or people in line at a commercial establishment.

Solicitors cannot operate on the beach, in parking lots, within town-owned or Wave Transit vehicles and in the Towns public right-of-ways. At the meeting, Eldridge said he would change the latter to specific paved right-of-ways to allow people to utilize sidewalks and dirt roadsides.

The bottom line is that if someone is in the street, they cant solicit, but if they are on the sidewalk or the dirt, they can, Eldridge said.

Private property is also forbidden if the owner or tenant informs the solicitor to stop or posts a visible notification banning the act.

Solicitation is limited to daylight hours and if someone violates the ordinance, they can now be charged with a $50 civil citation, due no more than 72 hours after issuance.

One Kure Beach resident pointed out during the meetings public comment period the amendment may still cause confusion and be too restrictive.

[The amendment] does not produce reasonable places when you take away all the prohibited places listed, Megan Garrett said during the meeting. It pretty much says you can do this in public but not in any of the public parts of the town.

However, Garrett approved banning aggressive solicitation only. Allowing people to panhandle anywhere, in her opinion, does not impede the welfare of citizens and is exercising the right to free speech.

Eldridge noted that the towns restrictions are permitted under the amendments purpose. He added the public welfare and safety is served by restricting where solicitation can occur.

We recognize the right to the First Amendment to solicit and panhandle, Eldridge said. As you all know, theres been a lot of prohibitions or regulations that have been struck down by the way they are worded, whereas reasonable time, manner and place restrictions are bound to be enforced.

During her comment, Garrett also raised concerns about other activities that could be considered solicitation, like busking.

One could argue that having an open guitar case could be interpreted as a request for a donation, and therefore, prohibited in all the places one would normally busk, she said. If this is the councils intent, I ask that you reconsider.

Eldridge told Port City Daily busking would not be subject to the new amendment and is still under review by town staff, but council members had questions about other activities like ice cream trucks and door-to-door salespeople.

He added the town distinguishes advertising from solicitation salespeople would be soliciting, but ice cream and food trucks are more nuanced. He said the town is considering revising the solicitation definition to give clearer guidelines on busking and mobile businesses.

Port City Daily reached out to the Kure Beach Police Department to find out how it will enforce the ordinance, but no one responded by press.

Reach journalist Brenna Flanagan atbrenna@localdailymedia.com

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Solicitation in Kure Beach: Town adds fine and defines banned areas, raises First Amendment concerns - Port City Daily

With help from Derek Robertson

"Mixers" like Tornado Cash were crucial to various crypto hacks. | shapecharge/iStock

Over the past 24 hours, a video of a bearded man crooning lines of computer code with the aid of an auto-tuner has achieved minor virality online.

In addition to being amusing, the video gets to the crux of a momentous legal question hanging over the digital era: How does the First Amendment apply to computer code?

In the song, by musician Jonathan Mann, the lyrics are lines of code from Tornado Cash, a software tool called a mixer used to obscure the provenance of crypto tokens, which the Treasury Department sanctioned last week after it was used by North Korean hackers.

The refrain of Manns song This is illegal argues that the sanctions amount to a constitutionally dubious ban on discussing the Tornado Cash code itself.

Its not clear that the sanctions actually outlaw reciting code, melodically or otherwise. But they do include what appears to be the first-ever ban on interacting with blockchain addresses controlled by self-executing code (sanctions normally ban transactions with accounts controlled by specific people or entities). And as crypto advocates mull legal challenges to the sanctions, theyre homing in on First Amendment objections.

A showdown over the constitutionality of the sanctions would reopen decades-old questions about the legal status of code. In all likelihood, it would be just the first major skirmish in a broader fight over the First Amendments application to blockchain systems, one that crypto advocates have been anticipating for years.

In the early 90s, the Justice Department launched an investigation of a programmer who had released an encrypted messaging system, Pretty Good Privacy, under the logic that the software which had the potential to thwart U.S. spying capabilities counted as a munition, and was therefore subject to an export ban. The government eventually dropped the case, and in 1999, the 9th Circuit Court of Appeals ruled on First Amendment grounds in favor of another programmer, Daniel Bernstein, who challenged the application of export controls to cryptographic code.

This week, the Electronic Frontier Foundation, which represented Bernstein in the 90s, has expressed reservations about the Tornado Cash sanctions, arguing that the government doesnt have the power to ban the dissemination of computer code.

EFF did not immediately respond to a request to discuss its First Amendment reservations in more depth. But the crypto advocacy group Coin Center, which is considering a lawsuit over the sanctions, fleshed out its First Amendment objections in a lengthy analysis published Monday. The analysis argues that both the intent and the effect of the sanctions is to have a chilling effect on people exploring the very idea of cryptocurrency mixers.

While this affects only a niche class of blockchain applications, the question of how far First Amendment protections extend to transmissions of information within blockchain systems could have more profound implications. Bitcoin advocates have long made the case that both Bitcoins source code and Bitcoin transactions are protected by the First Amendment.

But what if theyre wrong, and the government can ban Bitcoin?

Many legal experts contend that speech protections for computer code are context-dependent, weakening or disappearing when someone executes the code with a computer.

People would argue that is more akin to action than it is to speech, First Amendment lawyer Bob Corn-Revere, a partner at Davis Wright Tremaine, told me.

But Corn-Revere, who served on Bernsteins legal team, said that since that case there has been a dearth of court decisions on the issue. As new software applications have raised new legal dilemmas, he said, new guidance about where and how computer code crosses from the realm of speech into the realm of action has yet to follow.

Thats the unanswered question, he said, in terms of where the courts go.

The Federal Reserve | AP Photo

Another unlikely crypto-world alliance is revealing just how unpredictable the fault lines around the new technology can be.

As POLITICOs Sam Sutton reported today for Pro subscribers, the crypto industry is flexing its burgeoning muscle on the Hill to convince lawmakers to stay out of the stablecoin business. The Federal Reserve has been exploring the concept of a digital dollar for some time now, and Rep. Jim Himes (D-Conn.), who released a Fed digital dollar proposal earlier this year, told Sam that not only do private stablecoin providers view a central bank digital currency, or CBDC, as a potential threat, banks dont like it either, viewing it as as a potential disrupter of their very profitable payment systems.

Its a notable alliance if only because, as you might have heard (frequently), the crypto and banking industries dont exactly agree with each other on much. Neither, presumably, did Sens. Kristen Gillibrand, a progressive standard-bearer, or Cynthia Lummis, from deep-red Wyoming, who sponsored this years biggest piece of crypto legislation. The next unlikely team-up around a crypto policy issue whether it ends up being around regulatory classification, international relations, or maybe even rural revitalization will officially make a trend, by old newsroom rules. Derek Robertson

Crypto may be down, but it looks like the meme coins are making a comeback.

The mostly-worthless joke crypto tokens most notably touted by Elon Musk in the case of Dogecoin, which hes boosted so consistently that its more or less ceased to be a joke have seen a sudden jump in their value as of late even amid the overall crypto slump, with Dogecoin spiking nearly 11 percent over the past week as of this writing, and Shiba Inu nearly 20 percent. (And yes, theyre nearly all still named after dogs, from Akita Inu to Zelda Inu.)

Of course, these are matters of degrees. The current value of Dogecoin hovers around eight-tenths of a cent. Shiba Inus is mere fractions of a penny that stretch to six digits. Trading these coins is, essentially, a game: Theres no promise of technological transformation, financial anonymity, or the creation of fortunes, just playing around with miniscule amounts of money on your phone.

Provided, as always, that one doesnt get too greedy, theyre probably one of the lower-stress, and certainly one of the lower-stakes, means of dipping ones toe into the crypto market but to be clear, as they say on the forums and subreddits that comprise the communities which are essentially these coins raison detre, this is not financial advice. Derek Robertson

Stay in touch with the whole team: Ben Schreckinger ([emailprotected]); Derek Robertson ([emailprotected]); Konstantin Kakaes ([emailprotected]); and Heidi Vogt ([emailprotected]). Follow us @DigitalFuture on Twitter.

Ben Schreckinger covers tech, finance and politics for POLITICO; he is an investor in cryptocurrency.

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Crypto pleads the First- POLITICO - POLITICO