On June 17, 2021, the Supreme Court issued two decisions that may concern employers and their businesses.

InFulton v. City of Philadelphia, the Supreme Court unanimously ruled that Catholic Social Services (CSS), a foster care agency located in Philadelphia, has the right to refuse to work with same-sex couples when screening for potential foster parents. The City of Philadelphia refused to refer children to CSS upon learning that the agency would not certify same-sex couples as parents due to its religious beliefs on marriage. CSS and several affiliated foster parents filed suit, alleging that the referral freeze violated the Free Exercise and Free Speech Clauses of the First Amendment.

The Supreme Court ruled that CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else. Thus, the Court held that it is plain that the city's actions have burdened CSS's religious exercise by putting it to the choice of curtailing its mission or approving relationships inconsistent with its beliefs. Because the Court found that the City violated the Free Exercise Clause of the First Amendment, it did not rule on the agencys Free Speech claim.

InCalifornia v. Texas, the Supreme Court upheld the penalty provisions of the Affordable Care Act (the Act), holding that Texas, seventeen other state plaintiffs and two individuals did not have standing to challenge the constitutionality of 26 U. S. C. 5000A(a)), the part of the Act that nullified the monetary penalty for failing to obtain minimum essential health insurance coverage.

In 2010, the Act required many Americans to obtain minimum essential health insurance coverage and imposed a monetary penalty on most individuals who failed to do so. InNational Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012), the Supreme Court upheld the Act as an exercise of Congress taxing power. In 2017, amendments to the Act reduced the penalty to $0. Shortly after the Amendment took effect, Texas and the other plaintiffs filed suit, seeking an order declaring the Amendment unconstitutional, a finding that the rest of the Act is not severable from 5000A(a), and an injunction against enforcement of the rest of the Act.

The Supreme Court held that the plaintiffs did not have standing to challenge 5000A(a)s minimum essential coverage provision because they had not shown a past or future injury fairly traceable to defendants conduct enforcing the specific statutory provision they attack as unconstitutional. The Court was unpersuaded by the state plaintiffs claims of indirect injury in the form of increased costs to run state-operated medical insurance programs and direct injury resulting from increased expenses. In essence, the Court found that plaintiffs had not shown that any kind of Government action or conduct has caused or will cause the injury they attribute to 5000A(a).

The Supreme Court is set to issue other decisions on a variety of other matters before its term ends on June 30, including the free speech rights of public school students off-campus; whether certain academic-related perks can be provided to NCAA athletes; and voting-rights issues. Miller Canfield will continue to provide updates as the Court issues its decisions.

2021 Miller, Canfield, Paddock and Stone PLC National Law Review, Volume XI, Number 169

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Supreme Court Rulings on First Amendment & LGBTQ Community - The National Law Review

It may be dubbed the "Promoting Rights and Online Speech Protections to Ensure Every Consumer is Heard" (PRO-SPEECH) Act, but a new bill from Mississippi Republican Sen. Roger Wicker is anything but First Amendment-friendly. Wicker's measure would ban huge swaths of online content moderation, forcing private internet forums to host speech that may currently violate their terms of service and be considered hateful, harassing, vulgar, or otherwise undesired.

The bill would also take aim at freedom of association and free markets, disallowing some tech servicessuch as app stores and cloud computing companiesfrom choosing what products they offer or what businesses they'll contract with.

Introduced Thursday, the so-called PRO-SPEECH Act strikes at the heart of First Amendment protections, compelling companies under threat of sanction from the government to platform messages they otherwise wouldn't.

Essentially, Wicker's bill is "net neutrality" legislationsomething that was vehemently opposed by Republicans of yorebut for online content platforms, search engines, and marketplaces rather than internet service providers. The bill would make it illegal for digital entities to block or impede access to "any lawful content, application, service, or device" that doesn't interfere with platform functionality or "pose a data privacy or data security risk to the user."

The bill would also explicitly ban taking action against a user based on "political affiliation." Tech companies could no longer choose to ban, for instance, Nazi content or decline to host web forums devoted to white supremacist political groups. Web forums couldn't choose to be exclusively for conservative users, or progressive users, or so on.

"Approximately zero people actually want" the Internet this bill would create, Daphne Keller of the Stanford Cyber Policy Center commented on Twitter.

Notably, the bill would exempt from some provisions any company that "publicly proclaims to be a publisher."

It has been a common conservative delusion that Section 230 of the Communications Decency Act already turns on some sort of vital legal distinction between "publishers" on one hand and "platforms" on the other, with platforms having a responsibility to remain neutral conduits for content and only publishers allowed to set any rules for what types of content they will carry. This is not actually the way that Section 230 works.

But "Senator Wicker is trying to make the ridiculous and nonsensical 'publisher/platform' distinction an actual thing, despite the fact that this is blatantly unconstitutional," writes Mike Masnick at Techdirt. "The end result is that this bill leans into the moderator's dilemma and creates two types of internet sites: complete garbage dumpswhere no moderation can take place, and Hollywood-backed squeaky clean productions. It wipes out the parts of the internet that most people actually like: the lightly moderated/curated user-generated aspects of social media that enable lots of people to have a voice and to connect with others, without being driven away by spammers, assholes, and abusers."

In addition, the bill also redefines anti-competitive behaviorthe backbone of antitrust law violationsto include any large company blocking, prohibiting, or discriminating against any platform that competes with any part of its own business. No matter how many of a company's rules the quasi-competitor violated, it would have to be allowed.

The Federal Trade Commission (FTC) would have broad discretion to enforce the law, making it ripe for politics-based abuse. Small internet businesses would be exemptexcept for when the FTC decides they are not.

Violations would be considered unfair and deceptive practices under the Federal Trade Commission Act. Anyone could register a complaint with the FTC alleging a violation, creating a massive new undertaking for the commission as internet moderation police and a massive new layer of bureaucracy for tech companies, which would be required to respond to every complaint.

In essence, the law would quite literally make a federal case out of every aggrieved YouTuber who gets demonetized, business that thinks its search results aren't high enough, troll who feels he deserves a right to say whatever he wants online, etc. If tech companies don't issue a reparation to the complainant, the FTC would be forced to open an investigation within five months.

Originally posted here:

The PRO-SPEECH Act Is Anything but First Amendment-Friendly - Reason

Newswise The American Society of Anesthesiologists (ASA) asked United States District Judge Madeline Cox Arleo on June 11 to see the trade libel suit filed by Pacira BioSciences two months ago for what it is: an egregious and unjustified public relations campaign that seeks to chill scientific research and debate about Paciras controversial drug EXPAREL (liposomal bupivacaine). In its case, Pacira disputes the conclusions of peer-reviewed articles and an editorial in the February 2021 issue of Anesthesiology that EXPAREL lacks a comparative benefit over standard bupivacaine, even though it costs 100 times as much.

However, as explained in the motion to dismiss, that entitles Pacira to nothing in a court of law: Scientific conclusions based on disclosed data and methodology are not capable of a defamatory meaning. And the conclusions that EXPAREL does not provide a clinically-significant benefit in reducing a patients pain over standard bupivacaine are consistent with the conclusions and outcomes of numerous other clinical trials and papers, including Paciras own.

The motion also points out that Pacira has not and cannot allege the requisite malice needed to state a claim for trade libel. To believe that, one must assume that three disparate groups of doctors and researchers from across the United States and Canada secretly conspired with the ASA, Anesthesiologys Editor-In-Chief, and anonymous peer reviewers to simultaneously reach false conclusions about EXPARELs lack of comparative efficacy. Not only did that never happen, Paciras complaint does not even attempt to plausibly allege that it did.

The motion quotes statements from Paciras CEO David Stack and CFO Charlie Reinhart during a May 4 earnings call that eviscerate Paciras allegation of injury. When asked if there was any reason to be concerned about the articles, Pacira said the company did not have anything to worry about, that doctors were using the drug regardless of the articles, and that things are going very, very well. In other words, Pacira is lying either to a federal judge or its investors.

The journal Anesthesiology stands proudly behind its scientific integrity and trusted evidence, and welcomes the dismissal of this suit, said Evan D. Kharasch, M.D., Ph.D., Anesthesiology Editor-In-Chief.

The motion comes just weeks after Pacira, in an unusual about-face, withdrew its motion seeking a retraction of the articles and backed away from having Judge Arleo rule quickly on the supposed merits of its claims.

ASA and the author-defendants are represented by Quinn, Emanuel, Urquhart & Sullivan LLP and Marino, Tortorella & Boyle, P.C.

About the American Society of Anesthesiologists:

Founded in 1905, the American Society of Anesthesiologists is an educational, research and scientific society with more than 54,000 members organized to raise and maintain the standards of the medical practice of anesthesiology. The ASA is committed to ensuring physician anesthesiologists evaluate and supervise the medical care of patients before, during, and after surgery to provide the highest quality and safest care every patient deserves.

For more information, contact Theresa Hill at the ASA ([emailprotected]).

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Defending Science And The First Amendment, ASA Asks Federal Judge To Dismiss Paciras Lawsuit - Newswise

American democracy is in danger, and American journalism needs to respond with more than slogans.

Editorials are a good start and the Boston Globe has nowset the bar awfully damn high.

But the mightiest weapon in the journalistic arsenal isn't opinion columns.It's relentless news coverage.

Journalists have the unique ability to ask questions on behalf of the public, demand answers, assess truthfulness, decry stonewalling and do it all again the next day.

To rescue and revive democracy, news organizations don't need to "take sides" with one party or another, and they don't need to publish articles full of opinions.

What the top editors in our top newsroom must do, however, is set the agenda. They need to decide what is newsworthy, and then bring their resources to bear accordingly.

That's the true power of the press.

And those editors should start with an easy one by relentlessly covering the Justice Department's recent outrageous seizures of reporters' communication records. That means news storiesevery dayuntil the public is able to fully understand how they were authorized and by whom, how they were allowed to proceedand what will prevent similar occurrences in the future.

Assaults on freedom of the press aren't "inside baseball." These are the front lines. This is a huge story. As David Boardman, dean of the journalism school at Temple University, tweeted:

The formerly secret subpoenas were for records from reporters at the New York Times, the Washington Post and CNN, in order to identify their confidential sources. Two of the subpoenas were accompanied by outrageous gag orders. (Gag orders on news organizations!)

Their overdue public disclosure by the Justice Department in recent weeks made major headlines and spawned a number of angry opinion pieces.

But with the notable exception of the Times, there's been relatively little news coverage since then. (On Thursday night, the Times continued its streak with abarnburnerreport that Trump's DOJ had similarly subpoenaed communications records of Democrats on the House Intelligence Committee.)

What's particularly missing even from the Times coverage is the application of pressure on the current Justice Department leadership to fully explain what happened, when, why and how. That should be the drumbeat, every day.

Although the various leak investigations originated during the Trump administration, they extended well into Biden's. A huge element of this story is why those investigations weren't immediately abandoned and condemned and why the Justice Department under Merrick Garland won't come clean about what happened.

Some of the opinion pieces were powerful, particularly the one from the normally invisible Washington Post publisher,Fred Ryan.He appropriately pointed out that "the Biden Justice Department not only allowed these disturbing intrusions to continue it intensified the government's attack on First Amendment rights before finally backing down in the face of reporting about its conduct."

In fact, it was the Biden administration thatimposedthe gag order on the New York Times's lawyer, preventing him from disclosing the government's efforts to newsroom leaders or the four reporters whose email logs were at issue.[UPDATE June 13, 12:30 p.m.: Technically, the gag order was imposed by a federal magistrate judge, responding to an application from the Justice Department. The March gag order amended aJanuary orderthat had fully gagged Google from talking to anyone about the records request. TheMarch orderallowed Google to tell the Times's lawyer, but imposed a gag on him as well.]

"This escalation, on Biden's watch, represents an unprecedented assault on American news organizations and their efforts to inform the public about government wrongdoing," Ryan wrote.

The Justice Department on June 5 announced that it would no longer use subpoenas or other legal methods to obtain information from journalists about their sources, elicitingsome new headlines.

But that should not have placated anyone in the news business. What it should have prompted is a slew of additional questions about how this new policy would be applied in an accountable fashion.

AsAnna Diakun and Trevor Timmwrote in the Columbia Journalism Review, the new policy is "a significant improvement to the DOJ's previous approach. Still, there are questions to be answered. When will the DOJ officially update its news-media guidelines to reflect this change? And as theTimesnoted, the DOJ's statement appears to leave some 'wiggle room' surrounding the circumstances in which the policy applies, limiting it to when journalists are 'doing their jobs.' What exactly does this mean?"

Their final, critical question: Who will the Justice Department considera member of the news media?

None of the news reports I saw about the policy shift showed anything likethe appropriate skepticism. For that, you had to watchtelevision interviews with some of the reporters who were directly targeted.

On CBS Now, for instance, Times reporterMatt Apuzzomade the crucial point that there's no reason to take the Justice Department at its word until it fully explains itself. "First we have to understand what happened. How did it happen? Why did it happen?"

"This is becoming a bipartisan pattern," Apuzzo said.

Journalism groups are justifiably concerned.Bruce D. Brown, executive director of the Reporters Committee for Freedom of the Press, said in a statement that "serious unanswered questions remain about what happened in each of these cases."

And by coincidence, the esteemed free-press advocate Joel Simonannounced this weekthat he will step down after 15 years as executive director of the Committee to Protect Journalists. He told the Times: "Governments are increasingly taking aggressive action toward journalists, and there are very few consequences."

In addition to the three demands for records in leak investigations, we also learned in the last few days about a Biden-era demand from the FBI that deserves more coverage. The FBI issued a subpoena to USA Today, demanding it hand over identifying information about readers who had accessed a particular story online during a 35-minute window.

The request related to a Feb. 2 articleabout the shooting death of two FBI agents while serving a warrant in a child exploitation case in Florida. The 35-minute window in question was more than 12 hours after the shooter had killed himself inside his barricaded apartment.

The request was bizarre and inexplicable, and should have been blocked by superiors. Instead, it was only withdrawn "after investigators found the person through other means, according to a notice the Justice Department sent to USA TODAY's attorneys Saturday."

How could that have happened?

Some of the ideally relentless news coverage would also involve questions for the news executives who received subpoenas.

Why did New York Times lawyer David McCraw honor such an obviously absurd gag order? (The order, imposed in March, related to records that were four years old, evidently as part of a fishing expedition aimed to show that former FBI director James Comey disclosed a "secret" document that wasmost likely a hoax. I am not making that up.)

Why, once McCraw was allowed to discuss the request with Times publisher A.G. Sulzberger and CEO Meredith Kopit Levien, didtheyhonor the gag order? Why didn't they just call a press conference?

There are much tougher questions for CNN, which in its own reporting buried the fact that it caved to the Justice Department'srequestfor reporter Barbara Starr's email logsfor June and July 2017.

CNN lawyerDavid Vigilante, honoring a gag order the whole time, apparently fought the Justice Department's request from May 2020 all the way through Januaryof this year. He even won a court ruling that CNN shouldn't have to turn over the logs of emails that were internal to the company.

But that, apparently, was what CNN cared about most. So six days into the Biden administration, CNN turned over a list of Starr's external email contacts during the specified time period to the Justice Department.

CNN'sofficial lineis that those were "essentially records that the government already had from its side of these communications."

Sorry, that doesn't cut it.

Transparency and accountability for everyone!

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To save democracy, let's start by saving the First Amendment - Salon

Opinion analysis ByAmy Howe on Jun 17, 2021 at 1:04 pm

This article was updated on June 17 at 6:52 p.m.

In a clash between religious freedom and public policies that protect LGBTQ people, the Supreme Court ruled Thursday that Philadelphia violated the First Amendments free exercise clause when the city stopped working with a Catholic organization that refused to certify same-sex couples as potential foster parents.

The ruling was a victory for Catholic Social Services, an organization associated with the Archdiocese of Philadelphia, and two foster parents, who alleged that Philadelphias refusal to make foster-care referrals to CSS discriminated against the group because of its religious beliefs about traditional marriage. But the decision fell short of the broad endorsement of religious freedom that the challengers had sought. While the justices unanimously agreed with CSS and the foster parents that the citys action was unconstitutional, a six-justice majority left intact the Supreme Courts 1990 decision in Employment Division v. Smith, which held that government actions usually do not violate the free exercise clause as long as they are neutral and apply to everyone.

Chief Justice John Roberts wrote for the court, in an opinion that was joined by Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, Brett Kavanaugh and Amy Coney Barrett. Barrett wrote a concurring opinion that Kavanaugh joined in full and Breyer joined except for the first paragraph. Justice Samuel Alito wrote an opinion concurring in the judgment that is, agreeing with the result that the court reached, if not necessarily its reasoning. His opinion was joined by Justices Clarence Thomas and Neil Gorsuch. Gorsuch wrote his own opinion concurring in the judgment, which Thomas and Alito joined.

The case began in 2018, after Philadelphias city council passed a resolution that condemned discrimination that occurs under the guise of religious freedom and instructed the citys Department of Human Services, which contracts with private organizations to place children in foster homes, to change its contracting practices. In the days that followed the resolution, the city stopped all referrals to CSS.

CSS and two foster parents, Sharonell Fulton and Toni Lynn Simms-Busch, went to federal court and sought a court order requiring the city to resume referrals to CSS. They contended that the citys decision to cut off referrals violated several different parts of the First Amendment: the free exercise clause, which protects religious belief and expression; the establishment clause, which (among other things) prohibits the government from favoring non-religion over religion; and the free speech clause. A federal district court turned them down, ruling that the citys policy passed muster under Smith. The U.S. Court of Appeals for the 3rd Circuit affirmed, finding no sign that the city had discriminated against CSS because of its religious beliefs.

The Supreme Court reversed. In his opinion for the court, Roberts began by observing that it was plain that the citys actions had burdened CSSs exercise of its religion, by requiring it to choose between curtailing its mission or approving relationships inconsistent with its beliefs. The question before the court, Roberts continued, was whether the Constitution allows the city to impose that burden.

And although CSS had asked the court to overrule Smith, Roberts noted, there was no need for the court to consider that question, because the citys policy is not generally applicable. The provision in the citys standard foster-care contract that CSS is accused of violating, which bars rejection of prospective foster-care parents based on their sexual orientation, includes a system of individual exemptions that the commissioner of the citys Department of Human Services can grant in her sole discretion, Roberts emphasized.

It doesnt matter, Roberts added, that the commissioner has never actually granted an exception. The problem, Roberts made clear, is the existence of a formal mechanism for granting exceptions in the first place, because such a scheme invite[s] the government to decide which reasons for not complying with the policy are worthy of solicitude.

Roberts also briefly considered, but rejected, the citys argument that CSSs refusal to certify same-sex couples violates a city ordinance prohibiting discrimination by public accommodations. The ordinance does not apply to CSS, Roberts reasoned, because foster-care agencies do not act as public accommodations in performing certifications.

Because the citys contracting policy is not generally applicable under Smith, the policy is subject to the most stringent constitutional test, known as strict scrutiny, Roberts explained. He concluded that it cannot pass that test. The city, Roberts wrote, has not shown that its goals of maximizing the number of foster families and minimizing the citys legal liability will be jeopardized by giving CSS an exemption from the non-discrimination policy. To the contrary, Roberts suggested, including CSS in the program seems likely to increase, not reduce, the number of available foster parents. Roberts acknowledged the citys weighty interest in the equal treatment of prospective foster parents and children, but he concluded that it was not sufficient to justify denying CSS an exception for its religious exercise, especially when the city has a system of exemptions.

CSS, Roberts concluded, seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs. CSS does not, Roberts emphasized, seek to impose those beliefs on anyone else.

Barrett, who joined the Roberts majority opinion in full, filed a short concurring opinion that was joined by Kavanaugh and (except for the first paragraph) Breyer. CSS and its supporters, Barrett acknowledged, have made serious arguments that Smith ought to be overruled. But in this case, she continued, the same standard applies regardless whether Smith stays in place. Therefore, she concluded, there was no reason for the court to decide in this case whether Smith should be overruled, much less what should replace it.

In his 77-page concurring opinion, Alito criticized the narrowness of the courts ruling, writing that Thursdays decision might as well be written on the dissolving paper sold in magic shops. Philadelphia, Alito suggested, could easily sidestep the decision simply by getting rid of the exemption system, and the ruling provides no guidance for similar disputes elsewhere in the country.

Alito then turned to the courts decision in Smith, which he characterized as a severe holding that is ripe for reexamination. The ordinary meaning of the Constitutions free exercise clause, Alito contended, is that it bars any laws that forbid or hinder unrestrained religious practices or worship. By contrast, Alito observed, Smith interpreted the free exercise clause as an anti-discrimination provision: It bars federal and state governments from restricting conduct that constitutes a religious practice for some people unless it imposes the same restriction on everyone else who engages in the same conduct. But if equal treatment was the goal of the free exercise clause, Alito suggested, the drafters of the First Amendment would have used more precise language to make that clear.

Alito acknowledged the doctrine of stare decisis, the principle that the court should rarely overrule its own precedent. But he nevertheless laid out the case to overrule Smith. Several of the factors that the court often considers when deciding whether to overrule its past decisions weigh strongly against Smith, Alito contended. For example, the decision is a methodological outlier that looked for precedential support in strange places, he suggested, and it is tough to harmonize with other precedents. Moreover, he added, courts have experienced a variety of serious problems in applying Smith. On the other hand, Alito argued, there is virtually nothing to recommend keeping Smith in place.

Alito closed by complaining that, after all of the time and attention devoted to the case, the Supreme Court had issued only a wisp of a decision that leaves religious liberty in a confused and vulnerable state. Those who count on this Court to stand up for the First Amendment have every right to be disappointed, Alito concluded. He added, as am I.

In his opinion concurring in the judgment, Gorsuch noted that if the court had overruled Smith, as Alito had suggested, this case would end today. Instead, Gorsuch objected, the majoritys course guarantees that this litigation is only getting started. The city will resist working with CSS as long as CSS refuses to certify same-sex couples, Gorsuch posited, and Thursdays decision will allow the city to try to avoid doing so for example, by rewriting its contract. And the effects of the courts decision will not be limited to CSS, Gorsuch stressed: Individuals and groups across the country will pay the price in dollars, in time, and in continuing uncertainty about their religious liberties.

This article was originally published at Howe on the Court.

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Court holds that city's refusal to make referrals to faith-based agency violates Constitution - SCOTUSblog

Washington, D.C., June 17, 2021 (GLOBE NEWSWIRE) -- In June 2016, Christopher Novinger and the U.S Securities and Exchange Commission (SEC) reached a settlement of the agencys claims that he and his company, ICAN Investment Group, LLC (ICAN), violated federal securities law. SEC required Mr. Novinger and ICAN to sign a consent order claiming that he had agreed to be bound forever by a Gag Orderan administrative tool meant to silence people with lifetime speech bans related to their prosecutions. For nearly 50 years, SEC has insisted that all people who settle their cases with the agency must agree to a gag that violates nearly every free speech doctrine.

Today the New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, filed aMotion for Relief from Judgment in the U.S. District Court for the Northern District of Texas on behalf of Mr. Novinger and ICAN, challenging the constitutionality of the SEC Gag Order that continues to hold themand the truthhostage. Mr. Novinger simply wants to speak candidly about SECs enforcement proceedings without facing the threat of a reopened prosecution.

Mr. Novingers Gag Order is broad, all-encompassing, and fails to provide clear notice of what speech it forbids. Worse, the Gag Order never expires. The ban is longer even than a criminal sentence would have been for the charged violation, which is especially relevant here as Mr. Novinger was never criminally charged. Perpetually mandating silence on such unclear terms that forbid him to do what even convicted people have every right to do (i.e., speak about their cases) violates Mr. Novingers due process rights.

The Gag Rule violates the First Amendment for a multitude of reasons: 1) it is a forbidden prior restraint on future speech; 2) it is a content-based restriction of speech; 3) it grants SEC unbridled enforcement discretion and silences Mr. Novinger in perpetuity; 4) it forbids truthful speech; 5) it unconstitutionally conditions settlement upon surrender of Americans inalienable rights of free speech; 6) it compels speech; and 7) it abridges Americans rights of petition long protected by the First Amendment. Any rule that racks up a list of constitutional violations this lengthy compels the conclusion that it could never have been a valid rule in the first place.

And, in fact, it was not. As NCLA points out, SEC created this Rule in 1972 without notice and comment, in violation of the Administrative Procedure Act. SEC dishonestly called it a Housekeeping Rule. Such rules cannot bind anyone outside the government, but SECs gag orders always bind outside parties. The Gag Rule was void from the day it was snuck into the Federal Register.

NCLA released the following statements:

SEC is notorious for issuing press releases that instantly destroy careers, reputations, businesses, and lives. It is hard to imagine a policy better designed to suppress the truth about these important matters than SECs Gag Rule, which contrives to give the agency the last word and render those it charges powerless to defend themselves in the court of public opinion. Fortunately, our Constitution does not permit that baleful bargain. Peggy Little, Senior Litigation Counsel, NCLA

The SEC requires settling defendants to state that they do not deny the SECs allegations if they truthfully say they do not admit them. The First Amendment forbids such compelled speech. The Gag Order also requires individuals to impute their own guilt. The Fifth Amendment does not permit such coerced self-condemnation. It is high time for SECs enforcement apparatus to be made to workwithin the confines of the Constitution. Kara Rollins, Litigation Counsel, NCLA

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholarPhilip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLAs public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans fundamental rights.

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NCLA Lawsuit in Texas Seeks to End SEC's Lifetime Gag Orders that Violate the First Amendment - GlobeNewswire

Washington, D.C., June 18, 2021 (GLOBE NEWSWIRE) -- The New York City Bar has published a proposed amendment to New York Rule of Professional Conduct 8.4(g) that raises significant constitutional concerns. The Proposed Rule is intended to more effectively guard against harassment and intimidation in the legal community, but its vague language exposes attorneys to discipline even if they lack any intent to discriminate against others.

The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, filed comments today in opposition to the New York City Bars Proposed Revision to Rule 8.4(g). Because harassment has no fixed meaning, bar officials would be free to adopt an expansive definition in cases involving speech they find distasteful, declare that the speaker reasonably should have been aware of that definition, and impose career-ending sanctions on the speaker. The Proposed Rule does not even require a showing that the lawyer intended to discriminate against or harass anyone. These defects will inevitably chill attorneys speech in the future.

The Proposed Rule runs headlong into numerous U.S. Supreme Court decisions that grant First Amendment protection to disparaging speech. In Matal v. Tam, the Court unanimously declared that a federal statute permitting government officials to penalize disparaging speech was unconstitutional. In National Institute of Family and Life Advocates v. Becerra the Court held that the First Amendment protects professional speech just as fully as other speech.

Nearly 20 states have either completely or largely rejected the adoption of ABA Model Rule 8.4(g) because of its infringement on free-speech rights. One month after the New York City Bar submitted its Proposed Rule, a federal court struck down Pennsylvanias nearly identical version of the rule, holding that the rule violates attorneys First Amendment rights. The court there held that the rule also violates due process rights because it threatens to deprive lawyers of life, liberty, or property without fair notice of the conduct it punishes, and because it is so standardless that it invites arbitrary enforcement. NCLAs comments ask the Administrative Board of the Courts to recommend against amending the New York Rules of Professional Conduct to include Proposed Rule 8.4(g).

NCLA released the following statement:

The Proposed Rule is an unwarranted speech code for attorneys. It is likely to deter lawyers from speaking out on important legal issues, for fear that they will face severe sanctions if someone later concludes that their speech constitutes harassment. Rich Samp, Senior Litigation Counsel, NCLA

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholarPhilip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLAs public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans fundamental rights.

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NCLA Warns NY Bar Not to Adopt Proposed Rule that Would Chill Lawyers' Speech - GlobeNewswire

She cant hold onto her own gun but she wants to grab yours. That and silence job performance criticism. (U.S. Representative Val Demings /Facebook)

U.S.A. -(Ammoland.com)-U.S. Rep. Val Demings (D-Fla.) made public what had been expected and announced, a challenge to Florida Republican U.S. Sen. Marco Rubio ahead of the 2022 elections, National Shooting Sports Foundation Senior Vice President and General Counsel Larry Keane noted Friday. The very first question at the very first debate needs to be this:

Has your stolen service weapon been found? Can you say with certainty your stolen service weapon has not been used in a crime, or worse to injure someone?

Thats a good question and one Deming should be asked often, not that we can expect a Democrat-championing media to embarrass its challenger of choice. That said, shes a gun-grabber of the first order, and worse than that, an Only One trading in on her past law enforcement credentials to swindle and mandate her countrymen out of their right to keep and bear arms.

I served in law enforcement for 27 years, four years of that as the Chief of Police for the Orlando Police Department, Demings related to readers in a USA Today opinion piece. Before being elected to Congress I spent most of my adult life wearing a uniform, a badge, and carrying a gun. I took an oath to protect the innocent from dangerous people.

Actually, the oath she took was to support the Constitution of the United States and of the State of Florida. Instead, she has devoted much of her newfound political power to the Democrat-driven citizen disarmament agenda and trying to hide it behind her huge but.

So it figures a politically powerful person who doesnt need to respect the Second Amendment would feel equally confident about trashing the First. Demings used the threat of legal action to try and silence a criticwho called her job performance as he saw it:

Orlando police Chief Val Demings is threatening to sue one of her critics for creating a Web site that criticizes her performance. Valdemings.com is run by Ezell Easy Harris, a frequent critic of Demings, and contains a disclaimer stating the chief has no association with the site Harris on Saturday said he has no intention of removing the site, which prominently features a report on the theft of Demings 9 mm service weapon, which was stolen from her agency sport utility vehicle If someone didnt tip the Orlando Sentinel about this gun, we probably wouldnt even know it happened, Harris said. I thought it was wrong that the public didnt know.

Harris had also reported on a stolen police car, Demings sheriff husband, a female supervisor reportedly getting away with sexual harassment, and the Police Departments handling of a 2007 case in which an officer was accused of pushing a woman down [the] stairs at the now-defunct Club Paris downtown.

No worries. Demings has taken over the domain and its now a campaign site saying only good things about her in the hopes of inspiring contributions to get even more political power.

Speaking of which, Keane tells us the contrast couldnt be more obvious between Demings and the incumbent she hopes to replace, Marco Rubio.

Sen. Rubio co-sponsored S. 1522, the Constitutional Concealed Carry Reciprocity Act, and scored an A+ on NSSFs 2020 Senate Report Card, he reminds us.

It would help if we knew the specific criteria for that grade. NRA gives Rubio top marks as well, despite his support for red flags and blacklists.

Thats not saying Rubio hasnt voted right much of the time and that an overt Democrat gun-grabber wouldnt have voted worse. But the thing about that is, his (and other Republiquislings) actions on another issue will ultimately undo and reverse every one of those good votes:

Republican Senators Marco Rubio, John Cornyn, Susan Collins, and Thom Tillis will attend a Thursday summit meeting hosted by the American Business Immigration Coalition, a pro-amnesty group consisting of big business donors, the U.S. Chamber of Commerce, as well as the George Soros-funded United We Dream organization.

We have the data and history to know where that will lead, particularly after Joe Biden fast-tracks millions of illegals on his superhighway to citizenship. Not that NRA or NSSF or any other prominent national or state gun advocacy group dares talk about that. Theyre afraid the cultural Marxists will call them names. So instead they defer to the single issue misdirection if they acknowledge the reality at all. Thats nonsense, of course, because anything that threatens the right to keep and bear arms IS part of the single issue.

By treating their members and followers to shallow happy talk about staunch defenders of our rights instead of reality, squishes like Rubio are not only given a pass, theyre rewarded, and the chances of a real defender of the right to keep and bear arms successfully mounting a primary challenge are effectively torpedoed. That practically guarantees a continuation of the swamp and the endless cycle of promises and betrayals.

We get that Rubio is no Demings and we get that a Senate majority is crucial if there is to be any hope for gun owners of legislative or judicial relief. Its past time gun rights leaders treated their members to the whole truth, warts and all, like adults. That way, choices can be informed, and candidates can be pressured to live up to their promises if not out of principle then at least out of self-interest and political survival.

Every time I see some weasel-worded fundraising solicitation telling me a candidate I wouldnt give a C to is a true friend and Second Amendment champion, a line by the character Fletcher from The Outlaw Josey Wales comes to mind.

About David Codrea:

David Codrea is the winner of multiple journalist awards for investigating/defending the RKBA and a long-time gun owner rights advocate who defiantly challenges the folly of citizen disarmament. He blogs at The War on Guns: Notes from the Resistance, is a regularly featured contributor to Firearms News, and posts on Twitter: @dcodrea and Facebook.

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Demings Has as Little Regard for the First Amendment as She Does the Second - AmmoLand Shooting Sports News