Daily Archives: February 6, 2017

Citizens do not have a First Amendment right to read the full court decisions that support the legality of the NSAs bulk data collection program, the Foreign Intelligence Surveillance Court concluded in an opinion issued on January 25th.

The court rejected a motion from several civil rights groups that argued the First Amendments right-of-access doctrinewhich entitles the public to access certain court proceedings and documents, typically in criminal casesapplies to those bulk-collection decisions.

The motion was filed in November 2013, five months after leaks by Edward Snowden publicly revealed the existence of an NSA bulk collection program. The motion sought the FISCs opinions addressing the legal basis for the bulk collection of data. According to a government filing, there are four such decisions, all of which were publicly released in 2014 after declassification reviews: an August 2013 amended memorandum, an October 2013 memorandum, an opinion and order (whose date was redacted), and a memorandum opinion, also with a redacted date.

Since those documents were released, the only remaining question for the FISC to answer was whether the public had a right to access the material redacted from those decisions.

The court dismissed the motion on standing grounds. It concluded that the movantsthe ACLU, the ACLU of the Nations Capital and the Yale Law School Media Freedom and Information Access Clinicdid not have a right to the documents and therefore did not suffer an injury when parts of the documents were kept secret. As a result, the court held that the plaintiffs lacked standing to bring the motion.

The ACLU made a similar First Amendment argument in a motion it filed in October seeking access to all major FISC decisions issued since Sept. 11, 2001. (For more on that motion and the right-of-access doctrine, see our previous coverage here.) The court has not yet ruled on that motion, but it set a deadlineof March 10 for the government to respond to the ACLUs arguments.

The Right of Access Argument

Like its motion from October, the ACLUs 2013 motion relied on the right of access doctrine, which generally requires court proceedings and documents to be open to the public if they meet a two-part test, known as the experience and logic test: they have historically been public (the experience prong) and public access offers some kind of discernible benefit (the logic prong). The idea behind the doctrine is straightforward: The First Amendments freedom of speech, press and assembly clauses provide the public with a right not only to speak or to take action, but also to listen, observe, and learn, as Justice Brennan wrote in 1980.

Both the ACLU and the FISC applied the experience and logic test to decide whether the public has a right to access FISC opinions, but they reached opposite results.

On the experience prong, the ACLU argued that courts normally disclose opinions that interpret the meaning and constitutionality of statutes, so there was historical precedent for the FISC to do the same. But the FISC said that framing was too broad. It said the real question is whether FISC proceedingsrather than court proceedings generallyhistorically have been accessible to the public. FISC opinions have not typically been released to the public, so the court concluded that the ACLU did not satisfy the experience prong of the test.

On the logic prong, the FISC similarly rejected the ACLUs arguments. While the ACLU claimed that public access would improve the legitimacy, accuracy and oversight of the FISC, the court said those arguments were just conclusory. Citing its 2007 opinion in In re Motion for Release of Court Records, the court identified a variety of risks that might come about with such access, including the possibility that public access would encourage the government to forgo surveillance in certain cases and conduct surveillance without the courts approval in cases where the need for court approval is unclear. It concluded that the ACLU made no attempt to dispute or discredit these detrimental effects.

The FISCs decision is bad precedent for the ACLUs pending motion, filed in October, that makes essentially the same First Amendment argument. But its not necessarily fatal. The October motion seeks a broader range of materialall of the FISCs major opinions and orders dating back to the September 11 attacksand includes additional bases for relief beyond the First Amendment, arguing that Rule 62 of the FISCs procedural rules allows third parties to motion for public release of decisions, and inviting the court to use its inherent supervisory power over its own records to release its opinions. If the government chooses to respond to that motion by the March 10 deadline set by the court, the ACLU will have until March 31 to reply.

Continue reading here:
FISC Rejects Claim That Public Has a First Amendment Right to Court Decisions About Bulk Data Collection - Lawfare (blog)

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Vincent Tolliver, who previously ran an unsuccessful campaign forCongressin Arkansas, was expelled from the campaign by interim DNC Chairwoman Donna Brazil, after telling The Hill he didnt believe his rivalRep. Keith Ellison (D-Minn) should become chairman because of his Islamic faith, citing the religions positions on homosexuality.

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His being a Muslim is precisely why DNC voters should not vote for him. Muslims discriminate against gays. Islamic law is clear on the subject, and being gay is a direct violation of it. In some Muslim countries, being gay is a crime punishable by death, Tolliver said.

Clearly, Mr. Ellison is not the person to lead the DNC or any other organization committed to not discriminating based on gender identity or sexual orientation. Im shocked [the Human Rights Campaign] has been silent on the issue. A vote for Representative Ellison by any member of the DNC would be divisive and unconscionable, not to mention counterproductive to the immediate and necessary steps of rebuilding the Democratic Party, he continued.

Having participated in a forum for potential DNC Chair candidates on Saturday, Tolliver was consequently expelled from the race by interim chair Donna Brazile, who described his comments as disgusting.

However, Tolliver has now pledged to take legal action against the DNC, claiminga violation of his constitutional First Amendmentrights.

Tolliver confirmed he would be taking legal action to Breitbart News, saying that the Democratic establishment are denying me due process and are attempting to suppress my voice, in violation of my First Amendment right, adding that he stands by his views on Islam.

The DNC and the Democratic establishment are attempting to prevent me from freely expressing known and indisputable tenets of lslamic law.Moreover, through sleight of hand tactics, interim chair Donna Brazile falsely accused me of discriminating against Mr. Ellison and cast aspersions by suggesting I was intolerant of religious freedom, he alleged.

Furthermore,the DNCs blocking my candidacy is a glaring contradiction to the 2016 Democratic Platform, that as Democrats, we respect differences of perspective and belief, and pledge to work together to move this country forward, even when we disagree.I am a lifelong Democratic who believes in people and not power and elitism which has successfully corrupted the DNC and the Democratic Party, he continued.

The DNC chairmanship election will take place later this month, with the winner being announced February 26th.

You can follow Ben Kew on Facebook, on Twitter at @ben_kew,oremail him at bkew@breitbart.com

Excerpt from:
Expelled Candidate for DNC Chair Suing Democrats for Breach of First Amendment - Breitbart News

President Trump came to the National Prayer Breakfast last week with cheering words about religious liberty. Together with his picks of Vice President Mike Pence and Supreme Court nominee Neil Gorsuch, he has made strong inroads among Christian conservatives.

But Trump needs to deepen his knowledge and broaden his interest in religious liberty.

When he talks about religious liberty, he almost always brings up the sole issue of the Johnson Amendment.

The Johnson Amendment is a 1954 law that prohibits religious organizations from participating in "any political campaign on behalf of or in opposition to any candidate for public office." Trump wants to scrap that, and congressional Republicans have a bill to do it.

Great. Freedom of speech is crucial. Passing and signing the Free Speech Fairness Act, a bill sponsored by Sen. Jim Lankford to repeal the Johnson Act, would be great.

But Trump needs to look wider at religious liberty, which was for years under attack by President Obama, and recognize that it is a far-reaching matter of conscience that extends to all manner of issues at the nexus of public and private life.

St. Augustine once wrote of a hypothetical man sentenced to death. "What does it really matter to a man whose days are numbered what government he must obey," Augustine asked, "so long as he is not compelled to act against God or his conscience?"

This is where the crisis is for the faithful in America today. Trump owes it to the religious conservatives who elected him to enter this fight.

The Obama administration tried to force Hobby Lobby's owners to pay for employees' morning-after birth control, which may function as abortifacients. They also fought the Little Sisters of the Poor to force the nuns to pay for birth control for convent staff. Obama's Equal Employment Opportunity Commission has gone after a Catholic School that fired a gay teacher after he married another man.

Also from the Washington Examiner

"We only ask that all of the NATO members make their full and proper financial contributions to the NATO alliance."

02/06/17 2:28 PM

Recently the ACLU sued Catholic hospitals in an effort to force them to perform abortions.

Wedding photographers, bakers and florists have all come under fire by state governments for not facilitating gay weddings.

These are cases where people were forced to choose between the law and a conscientious wish to follow the precepts of their faith. The Obama administration proposed the novel view that First Amendment protections of a person's free exercise of religion ceased the moment he or she entered into commerce.

Obama went out of his way to restrict the First Amendment, speaking regularly of the "freedom of worship," rather than to what the amendment actually refers to, which is the "free exercise of religion." In other words, he tried to pen religious liberty in so it could be exercised only on the Sabbath.

These are the threats to religious liberty that Trump needs to assault first. He needs to protect the conscience rights of believers.

Also from the Washington Examiner

Kerry O'Grady "has lost all credibility," Secret Service spouses told the Washington Examiner.

02/06/17 2:19 PM

He could start by making it clear that the Obama administration's view of the First Amendment was pusillanimous and he does not accept it. The freedom of worship is just a small part of the free exercise of religion.

Trump has a good role model in Judge Neil Gorsuch, his nominee for Supreme Court. In one of his many rulings, Gorsuch quoted court precedent to say, "The 'exercise of religion' often involves not only belief and profession but the performance of (or abstention from) physical acts."

Importantly, Gorsuch's rulings don't only include Christians, but also have covered Muslims and Native Americans.

Trump could also get to work undoing Obama's birth control mandate, a gratuitous culture-war assault on conscience. The president could make it clear across the executive branch that holding a traditional view of marriage is not bigotry, and those who hold these views thus don't deserve government prosecution or persecution.

Fights over the Johnson Amendment are worthwhile, but secondary, because politics are secondary. For the religious, the things of the world are nothing compared to the eternal. That means the most important thing Trump can do for those millions of Americans for who religious faith is pre-eminently important, is to make sure government isn't coercing them to do what God forbids.

Top Story

"We're going to be loading it up with beautiful new planes and beautiful new equipment," he said.

02/06/17 1:59 PM

Read this article:
How Trump can shore up the First Amendment - Washington Examiner

Credit card surcharges are synonymous with cash discounts. However, eleven states, including Texas, prohibitpassing credit card surcharges onto consumers as a way to cover the merchant fees associated with credit card payments. Bans on surcharges are not a new phenomenon in the United States, but when the federal ban expiredin 1984, these bans were largely left to state legislatures.

The most recent case regarding this matter, Expressions Hair Design v. Schneiderman, was heard by the Supreme Court earlier this year and concerned New York businesses that fell under the bans jurisdiction.

The argument was made that banning a surcharge to cover the interchange fees when a customer opts for the use of a credit card in lieu of cash or other similar means was a violation of the First Amendment right of businesses.

While it is legal under the New York statute as well as many others to offer a cash discount, businesses are not allowed to label the transaction fee a credit card surcharge.

The First Amendment argument is weak. The idea that it is meant to protect consumers with transparency is suspect. Aside from refusing merchants the right to label a cash discount or lack thereof a particular way, very little of the legal wording of these provisions mention anything explicitly regarding free speech.

A major problem with the free speech argument is that the enforcement history concerning the charges has been ambiguous over the years. Even the aim of the statute is slightly arbitrary.

Whether these statutes imply that two prices, one for credit cards and one for cash equivalents, is prohibited or these statutes are aimed at curbing bait-and-switch pricing tactics is not entirely clear.

If businesses were forced to convey the reason for the credit card surcharge instead of a cash discount, it would be a way of controlling speech as well.

The reason a business wouldnt want to convey the surcharge: to avoid the awkward conversation of why their customers suddenly have to bear the brunt on the transaction costs, which I imagine is a highly prevalent phenomenon.

Behavioral economic theories play a role in the case but are hard to quantify or find legitimate empirical evidenceaffirming a rejection of the ban. Overall, the argument that could potentially justify the overturn of such bans are not without merit. The surcharges could transfer more power from credit card companies to consumers.

Consumers sentiments could change regarding the frequent use of credit cards as well as provide consumers with more information about transactions with increased transparency. All that aside, even with commercial speech taken into account, these laws most definitely regulate conduct as opposed to speech.

In effect, this renders the First Amendment argument as an appeal that comes off as little more than grasping at straws.

Opinion columnist Nicholas Bell is an MBA graduate student and can be reached at opinion@thedailycougar.com

Tags: Credit Cards, economics

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Credit card surcharges and the First Amendment - The Daily Cougar

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for redress of grievances."First Amendment, U.S. Constitution

In the first two weeks of the Trump administration, the President or his staff have taken actions against, or complained about, the expression of each part of the first amendment. It's like they've never even read it.

Police departments in large cities have had to deal with protest crowds for years, and most of them, most of the time, do fairly well. Now, in the Trump era, departments in even small towns have had to engage in a crash course in how to respond. Most of them are also doing fairly well in respecting their citizen's first amendment rights. Visalia held a protest recently, where organizers expected maybe 80 or 100 people to show up. Imagine everyone's surprise, especially the Visalia Police Department's, when an estimated 500 were on hand to express themselves. VPD must have done a good job, we've not heard of any issues arising from the peaceful protest. (a lot of nonsense on Facebook about it, but that doesn't really count)

I think the protests are the only good thing I've seen happen as a result of Trump winning the Presidency. He's reminded the American people of their basic civil duty, and their right to engage in defending their country. I doubt he thought it would be in response to his actions (or just his presence), though.

We're going to be seeing a lot of this kind of thing in the future. I have no doubt that instigators will try to inflame things by engaging in violence and destruction (as we saw in Berkeley), and of course the Fox News and Breitbarts of the country will try to lay the blame on liberals and liberalism. They'll ignore hundreds of peaceful demonstrations, and focus on the few outliers. After all, that's how they drive their ratings and page clicks. I have no doubt that Robert Reich was correct when he stated on CNN that outside agitators invaded the Berkeley protests, set fires and broke windows, and that they are linked to right-wing organizations. Peaceful protests don't suit their agenda, so it's not unexpected that things like that happen.

I expect more events like Berkeley will happen, as the right wing begins to recognize how badly they're losing the hearts and minds of the public.

To qoute Scotty: "Hold on tight, lassie. It gets bumpy from here."

And since my recent posts have generated a lot of uniformed commentary on the Visalia Times Delta's Facebook page, here some important information:

This is not an "article". I am not a journalist. I am not employed by the Visalia Times Delta, and they do not edit or censor or otherwise control, my posts.

I am a "community blogger" and my blog is hosted at the Visalia Times Delta's page, on Gannett's servers. If you want to become a community blogger, contact the Times Delta. This has been available to the public for several years. Take advantage of it, it's fun!

First Amendment quote and image from

US Courts.gov

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Read the original here:
1st Amendment - Visalia Times-Delta