Appellate court decisions result in winners and losers in any specific case, but the issues involved often are worked through murky gray areas. Consider for example the July 30 U.S. Supreme Court decision in Little v. Reclaim Idaho.

The background is fairly well known in Idaho. The group Reclaim Idaho has been trying to promote an Invest in Idaho tax and schools initiative for the November election ballot. When the pandemic hit and Gov. Brad Littles stay at home order was issued, its petition-gathering which in the normal process has to be done face to face was blocked, which meant a part of Idahos election process also was blocked.

That point, essentially an argument over voting civil rights, went to federal court. Idaho U.S. District Judge B. Lynn Winmill ordered that the state either simply place the proposed initiative on the ballot or allow the group to collect the signatures electronically. The state appealed, and the case with startling speed went to the U.S. Supreme Court. On a 4-2 decision, the court sided with the state, ordering a stay of the Winmill decision.

The Supreme Court, as often happens, didnt go to the center of the issue the voters-rights matter and it did not specifically reverse the Winmill decision, though it may have felt that way. But whats there is worth considering.

First, the majority decision (written by Chief Justice John Roberts) pointed out that, oddly enough, different federal courts have established different guidelines for what states can and cant do in initiative procedures (one reason the high court might have granted certiorari permission to bring this case to it). It said: The States depend on clear and administrable guidelines from the courts. Yet the Circuits diverge in fundamental respects when presented with challenges to the sort of state laws at issue here. According to the Sixth and Ninth Circuits, the First Amendment requires scrutiny of the interests of the State whenever a neutral, procedural regulation inhibits a persons ability to place an initiative on the ballot. ... Other Circuits, by contrast, have held that regulations that may make the initiative process more challenging do not implicate the First Amendment so long as the State does not restrict political discussion or petition circulation.

The Supreme Court didnt really land on this turf in its Idaho decision, but the majority did focus on the right of the state more than the right of the initiative proponent: The District Court did not accord sufficient weight to the States discretionary judgments about how to prioritize limited state resources across the election system as a whole.

Thats not an unreasonable point, but it leaves a massive gap in how to review something like this. In her dissent, Justice Sonia Sotomayor zeroed in on balancing harms to stay applicant against harms to respondent in other words, balancing the interests of the state and the initiative backers, rather than simply disregarding the interests of the backers. She acknowledged that allowing the electronic signature would be a burden on the state and counties and it would be but she argued it should be considered in context.

Putting a still finer point on it: The stay granted today puts a halt to their signature-collection efforts, meaning that even if respondents ultimately prevail on appeal, it will be extremely difficult, if not impossible, for them to collect enough qualifying signatures by any reasonable deadline for the November ballot. In other words, the delay occasioned by this Courts stay likely dooms to mootness respondents First Amendment claims before any appellate court has had the chance to consider their merits (and, indeed, before this Court has had the chance to consider any potential petition for certiorari).

So in balancing the rights of a state government against those of its voters, the Supreme Courts majority seems to be putting its thumb on the states side of the scale. That may be worth giving some careful thought when you look, as historically we long have, to the nations highest court as a protector of the rights of the American people.

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Commentary: Supreme Court placed its thumb on Idaho's side of the scale - Lewiston Morning Tribune

Lata Nott. Photo courtesy Freedom Forum.

By LATA NOTT

Last week, I spoke (virtually, of course) with agroup of journalism students about how the First Amendment relates to, and protects, the work theyll soon be doing. I walked them through the major legal doctrines that protect freedom of expression in this country:

The government cant create laws that censor or punish people for their speech, unless theres a compelling purpose behind them and those laws are the least restrictive way to achieve them;

It cant apply laws or take actionsin a manner thatdiscriminates against people based on the point of view theyre expressing;

It cant engage in prior restraint prevent something from being published unless it can prove that that publication would cause immediate and irreparable harm to the United States.

Its a lecture Ive given many times over the past few years, but afterwards, one of the students asked me a question Id never been asked before. Who makes sure the government isnt doing any of the things it cant be doing? Is there an agency that ensures compliance with the First Amendment?

For the most part, its just us, I replied and made some sort of expansive hand gesture in an effort to letthe studentknow that us encompassed her, me, the other 20 people on the Zoom call and the American people as a whole.

It was an off-the-cuff answer, and if Id had more time and my Wi-Fi connection had been less laggy, I might have said that its the courts that strike down unconstitutional laws and government actions, although executive agencies like the Department of Justice andlegislative bodies like Congress can certainly play a role by pushing for and implementing further safeguards for free expression. But my original answer still stands. Courts hear cases when lawsuits are brought by peoplewhose rights have been violated. The executive and legislative branches respond to demands from their constituents. And the public learns about the governments transgressionsthrough the press.

One of the most interesting things about the press is thatdespite being the only profession actually named in the Constitution, journalists themselves are not defined by any legal document or ordained by any government body.As my colleagueGene Policinskiwroteon World Press Freedom Day a few years back,Inthe larger sense, were all press every time we post, tweet or blog whether we want that title or not. Media critics and advocates alike are fond of noting the presshas no more and no less privilege under the First Amendment than any other U.S. citizen.

This is as true for theprofessional journalists who covered the recent Black Lives Matter protestsas it is for theMinneapolis teenager who recorded the killing ofGeorge Floyd, which sparked those protests in the first place. Anyone who cares enough to expose wrongdoingpeoplein power isserving as a watchdog. Anyone who wants to make truth known to the public at largewields the power of the press.

But the fact that anyone can do this doesnt detract from its significance, or the risks that it might entail.

Next week, it will have been eight years sinceAustin Ticewent missing. Austin was a Georgetown law student and former U.S. Marine Corps officer who went to Syria as a freelance journalist in 2012. He was also one of the only Western journalists on the ground while the Syrian conflict was unfolding and he made it his mission to report on the impact the conflict was having on civilians. On July 25, 2012,he posted this on his Facebook page, responding to those who told him he was crazy to try to report what was happening in Syria: We kill ourselves every day with McDonalds and alcohol and a thousand other drugs, but weve lost the sense that there actually are things out there worth dying for. Weve given away our freedoms piecemeal to robber barons, but were too complacent to do much but criticize those few who try to point out the obvious.

On Aug. 14, 2012, three days after his 31st birthday, Austin Tice was taken captive as he was preparing to travel from Daraya, near Damascus, Syria, to Beirut, Lebanon. Diverse credible sources report that he is still alive. Austinsparents, who have unrelentingly advocated for his return, recently published anopen letterinThe Washington PostsPress Freedom Partnership newsletter that included this heartbreaking message:

Each year around Austins birthday and the date of his capture, theres a brief moment of renewed attention and media coverage.Our son is imprisoned every single day.Every single day Austin needs his colleagues in journalism to ask questions about what is being done to bring him home, to dig for answers when they meet with obfuscation and to hold U.S. government officials accountable for their actions or lack thereof.

Advocating for Austin and other journalists who have been unjustlytargeted or detained is in our hands. So is safeguarding ourFirst Amendment freedoms. As Austin pointed out, we cant afford to be complacent.

. . .

Lata Nott is a Freedom Forum Fellow. Contact her via email at[emailprotected], or follow her on Twitter at@LataNott.

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FIRST 5: Standing up for the First Amendment; and Austin Tice - Salina Post

By Todd DeFeoThe Center Squarehttps://www.thecentersquare.com/Staff attorneys with the National Right to Work Foundation have issued a legal notice to state employees, informing them of their right to end union dues deductions.

The notice, which includes sample resignation letters, comes after the National Right to Work Legal Defense Foundation helped four public employees in Ohio win a settlement in a federal class-action lawsuit challenging a so-called escape period.

Under Ohios previous maintenance of membership policy, an estimated 28,000 state workers in the state could only end union dues deductions during a period that opened roughly once every three years, according to the foundation.

The employees filed suit against Council 11 of the American Federation of State, County, and Municipal Employees (AFSCME), Gov. Mike DeWine and Matthew M. Damschroder, director of the Ohio Department of Administrative Services.

They argued limiting the window to decide to stop paying mandatory union dues was an illegal restriction on their First Amendment right. The United States Supreme Court recognized the right in a 2018 decision, Janus v. AFSCME, and ruled the government can only deduct union dues or fees with a workers affirmative consent.

All State of Ohio public workers must be aware that they cannot be forced into abandoning their First Amendment right to refrain from subsidizing an unwanted union hierarchy just to keep their jobs, National Right to Work Foundation President Mark Mix said in a statement.

Any State of Ohio public servant who is falsely told that they must sign a union dues deduction form should contact the Foundation for free legal assistance in defending their Janus rights, he added.

The workers filed their lawsuit in U.S. District Court for the Southern District of Ohio. At least 150 people were refunded dues as a result of the settlement.

OCSEA intends to solicit employees to sign new membership and dues deduction cards that purport to restrict when employees can stop the deduction of union dues from their wages, the notice reads.

According to the National Right to Work Foundation, the most recent ruling is the fourth it has settled in the Buckeye State in favor of workers.

In January 2019, the organization won a settlement for seven Ohio public employees who filed a similar federal class-action lawsuit challenging AFSCME Council 8. The foundation subsequently helped two other Ohio public employees end escape period restrictions.

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National Right to Work informs state workers of their right to end union dues - The Highland County Press