Daily Archives: June 17, 2020

Imagine being forced, as the price of doing business, to pay for a trade associations speech on gun control, immigration, abortion, affirmative action, and many other hot-button political issues. Thats the situation attorneys in many states face just to do their jobs. Whether or not they agree with the bar associations political and ideological views, attorneys must join and pay dues as a condition of being licensed to practice law.

The First Amendment is supposed to protect your right to speak freely and associate with whomever you like. It also should protect against being forced to pay for other peoples speech. As Thomas Jefferson once explained, To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhor[s] is sinful and tyrannical.

To be sure, state bars serve a legitimate role, deciding who can practice as an attorney, how to handle attorney discipline, and the continuing education attorneys need. But when mandatory state bars combine these regulatory functions with political and ideological advocacy on issues far afield from the practice of law, as more than half the states currently allow, it infringes upon the First Amendment rights of attorneys who disagree with the messages these organizations advance.

Regrettably, the Supreme Court upheld the constitutionality of this arrangement in 1961. That ruling was assumed as an unchallenged predicate in 1990 in Keller v. State Bar of California, where our firm represented the petitioners. The Keller ruling, which focused on the procedures attorneys could use to avoid paying for the bars overtly political and ideological activities, built on the foundation of a 1977 decision, Abood v. Detroit Board of Education, that allowed states to force public employees who opted out of union membership to nevertheless pay agency fees to a public-sector union. The Supreme Court found the relationship between a state bar and its members analogous to a public-sector union and its members, holding that a state bar may constitutionally fund activities germane to [its] goals of regulating the legal profession and improving the quality of legal services using the mandatory dues of all members.

The court purported to restrict state bars from using compelled fees for political and ideological activities. Though our clients, led by Eddie Keller, won their fight against the California bar, in practice, bar associations have continued to engage in political and ideological battles while couching their involvement in innocuous-sounding phrases like pursuing the administration of justice. This veneer justifies the bars advocacy for a wide range of political and ideological issues ranging from felon voting to abortion to campaign finance restrictions.

In 2018, the Supreme Court overruled Abood in Janus v. AFSCME, acknowledging that it had failed to appreciate the inherently political nature of public-sector unions. Keller, likewise, did not recognize the pervasive politicization of integrated state bar associations that act as trade associations, and its foundation has crumbled. Forcing attorneys to subsidize a state bars political speech they disagree with is no less offensive to the First Amendment than forcing unwilling state employees to fund a public-sector union. The Supreme Court should harmonize its First Amendment jurisprudence across the context of compelled speech and revisit the Keller decision.

Unfortunately, the court recently declined review in such a case, Jarchow v. State Bar of Wisconsin, over the protest of Justices Clarence ThomasClarence ThomasOVERNIGHT ENERGY: Supreme Court upholds permit for B pipeline under Appalachian Trail | Report finds NOAA 'Sharpiegate' statement 'not based on science' but political influence | EPA faces suit over plan to release genetically engineered mosquito Overnight Defense: Trump confirms plans to draw down in Germany | Senate panel backs funding to prep for nuclear test 'if necessary' | US military command in Korea bans Confederate flag Gorsuch draws surprise, anger with LGBT decision MORE and Neil GorsuchNeil GorsuchObama wishes country a 'Happy Pride month' after SCOTUS decision protecting LGBTQ rights Overnight Defense: Trump confirms plans to draw down in Germany | Senate panel backs funding to prep for nuclear test 'if necessary' | US military command in Korea bans Confederate flag Gorsuch draws surprise, anger with LGBT decision MORE. In a statement dissenting from the Courts order denying review, Justice Thomas explained, Now that Abood is no longer good law, there is effectively nothing left supporting our decision in Keller. If the rule in Keller is to survive, it would have to be on the basis of new reasoning that is consistent with Janus. He invites future challenges to resolve the inherent contradiction of Keller and Janus.

Writing for the majority of the Supreme Court in Janus, Justice Samuel AlitoSamuel AlitoOvernight Defense: Trump confirms plans to draw down in Germany | Senate panel backs funding to prep for nuclear test 'if necessary' | US military command in Korea bans Confederate flag Gorsuch draws surprise, anger with LGBT decision Supreme Court's Title VII ruling is loss for originalism, separation of powers, diversity MORE noted, Forcing free and independent individuals to enforce ideas they find objectionable is always demeaning. Attorneys shouldnt have to choose between potentially losing their license to practice and financially supporting views with which they disagree. Its disappointing that the court declined to take up this issue that affects free and independent individuals across the nation. But we will keep looking for more cases to bring, so in time, perhaps the Supreme Court will ensure that attorneys nationwide enjoy protection against compelled subsidization of speech.

Deborah J. La Fetra is a senior attorney at Pacific Legal Foundation, with special emphasis on First Amendment litigation.

Elizabeth Slattery is a senior legal fellow and deputy director of Pacific Legal Foundations Center for the Separation of Powers.

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The First Amendment protects attorneys from compelled speech | TheHill - The Hill

Protesters are protected by "freedom of speech" and "freedom to peaceably assemble."

MEMPHIS, Tenn.

Attorney Kevin Snider explained protesters are protected by the First Amendment in which they can peacefully assemble. He said if protesters are in the street blocking traffic, but do not incite a riot, their presence is lawful.

"Anytime somebody is involved in an organized protest they are entitled to the fullest extent of constitutional protections," Snider said.

Snider said if protesters maintain peace and keep their protest on public property they most likely will not be cited with any violation.

"If theres a clear and present danger of inciting a riot or inciting other issues the police can ask you to disperse that area," Snider said.

Saturday night, the driver of an F-150 truck continued to drive into protesters near Madison and Cooper in Overton Square. No one was hurt, but the driver, William Day, has been charged with reckless endangerment and reckless driving.

"Youre in charge of a multi-thousand-pound vehicle against a pedestrian on the street and youre not going to be given any benefit of the world," Snider said.

Witnesses tell Local 24 News some of the protesters began to punch the driver through his window before he was arrested. Snider said if at any time a situation deteriorates and could be dangerous police officers can tell you to move.

"I think the only situation that would be a little different is if youre in your vehicle and surrounded by violent, angry protesters and you were acting in some type of self-defense to try and get out of the situation," Snider said.

If officers ask protesters to move to the sidewalk, it is best to obey their request if it is reasonable.

"Certainlynobody wants to restrict free speech but at the same time weve got to do it peacefully and we got to do it without anybody getting hurt or inciting the situation," Snider said.

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Protesters are protected by the First Amendment and will not be cited any violations if they remain peaceful - WATN - Local 24

Editors note: Karen Harris Tully is a writer who lives in Raymond and has agreed to keep a journal to share with Daily World readers during the odd and uncertain time were all navigating.

Dear Journal:

Happy Loving Day! June 12, the anniversary of the U.S. Supreme Court decision, Loving vs. Virginia that struck down laws banning interracial marriage. Its only been 53 years since that day.

Also, Happy Pride Month! Its only been five years this month that gay marriage was ruled legal nationwide.

This country has made important strides toward equality, but we still have a long way to go. And I want progress to happen now, now, NOW! But, mostly its slow and incremental, slow and painful. And yet we keep marching. Forward.

So this morning, Im making a sign. Today, I get to exercise my First Amendment right to peacefully protest for something I believe in. The First Amendment is my favorite amendment to the U.S. Constitution. It reads:

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 a redress of grievances.

This is the cornerstone, the foundation of our country. It is our right to peacefully assemble and petition the government to make things better for All Americans. It is our duty to speak up for what is right. I wish we could all agree on what that is. But until then, I will use my voice to say, All lives cant matter until Black Lives Matter.

Song of the day: America the Beautiful, Ray Charles version

Karen Harris Tully is a novelist living in Raymond with her husband and two small children. She writes sci-fi/fantasy for teens and adults and can be found at http://www.karenharristully.com.

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Dear Journal: That's some amendment, that First Amendment; let's use it - The Daily World

(Photo by Alex Wong/Getty Images)

Any conversation with me is classified, President Trump insisted at a press conference yesterday. Because once we had a scholar of constitutional law as president, and now we have the opposite of that.

The presidents voluminous knickers are in a twist this week over the upcoming release of Ambassador John Boltons book The Room Where It Happened: A White House Memoir, which is scheduled to hit the shelves on June 23.

As a former federal employee, Bolton had to submit his manuscript to the National Security Council to ensure it contained no classified material. Since December 30, when he dropped the 592-page tell all about his time as Trumps National Security Advisor on the NSCs doorstep, Bolton undertook multiple rounds of revision in coordination with Ellen Knight, the agencys senior director for prepublication review.

According to a Wall Street Journal op-ed penned by his lawyer Chuck Cooper, Knight acknowledged that the book contained no classified material, telling Bolton on April 27, thats the last edit I really have to provide for you and promising that the the final clearance letter would be ready in short order.

And then nothing happened. At least not until June 7, when the Washington Post broke the news that Boltons book was going to print on June 23, come hell or high water. At which point White House lawyer John Eisenberg who is, not for nothing, smack in the middle of the Ukraine saga detailed in the book wrote a letter to Bolton insisting that manuscript was chock full of classified information and publication would pose a great threat to national security.

Cooper insists that his client has satisfied his legal obligations to the NSC, and any further interference by the White House is simply an attempt to censor information embarrassing to the president. Which is a bold strategy, Cotton!

While the wisdom of going to print without clearance is debatable, the legality is not. This has been settled law since 1971 when the Supreme Court refused to stop the New York Times from publishing the Pentagon Papers. And President Twitterfingers may have forgotten that case, but Bill certainly remembers that prior restraint is really not a thing.

And yet, Donald Trump promises that the Justice Department will be filing suit imminently to enjoin publication of Boltons book.

Theyre in court or theyll soon be in court, he told reporters yesterday. If theyre in court to do LOCK HER UPS to John Bolton, news of it hasnt broken yet.

And thats criminal liability, by the way. youre talking about. Youre not talking about, like, hes got to return three dollars that he made on a book. Thats called criminal liability. Thats a big thing. You know, Hillary Clinton, she deleted 33,000 emails. And if we ever found out what those emails say, she wouldve had a liability. Thats what you have: You have liability.

So wise!

Barr himself was more circumspect, insisting that Bolton was flouting the legitimate classification review process, before going on to bizarrely insist that no one ever wrote a book about a sitting president, and discussions of current events areby their very nature classified.

And this is unprecedented, really, because I dont know if any book thats been published so quickly while, you know, the office holders are still in in government and its about very current events and current leaders and current discussions and current policy issues, which many of which are inherently classified.

Which is entirely true, if you leave out Cliff Sims, who fought his own protracted battle for clearance to publish Team of Vipers in January of 2019, just seven months after leaving the White House. Also that part about inherent classification, which is completely made up.

But if the Justice Department wants to go running to the courts for a prior restraint on speech based on the newly minted doctrine of inherent classification, they can try. Itll probably just help the Mustache Man sell more books but, hey, knock yourself out.

The White House vs. John Bolton [WSJ]Trump Administration Expected to Sue to Block Bolton Book [Bloomberg]

Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.

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Barr Threatens Suit To Stop Boltons Book Because The First Amendment Is, Like, More Of A Suggestion Really - Above the Law

NASCAR tossed out First Amendment

Dear NASCAR,

It's been a heck of a ride, but this is where I get off.

I really don't care what flag you display. I really don't care what a driver and sponsor put on their cars. I really don't care about their politics. Know why? Because I watch NASCAR to watch auto racing. Get it? Race cars, not race politics.

Want politics? Switch channels.

With your recent flag ban, you threw the First Amendment away and sacrificed yourself on the altar of political correctness.

I respect the right to freedom of speech. You obviously don't. The First Amendment is there to protect unpopular speech and ideas, not popular ones.

What's next? Can I bring a copy of "Huck Finn" to the track? How about a copy of "Gone with the Wind?" Will children be able to wear PAW Patrol T-shirts, or play with LEGO police figures? What about G.I. Joe?

Are you going to ban displays of the Bible, too? How about prayer? Don't want to offend anybody!

Welcome to FASCAR, race fans: Fascist Association of Stock Car Racing.

Bill Bastenbeck

Dayton, Tennessee

Bridging the divide one dinner at a time

"They have equal opportunity, what do they want?" my frustrated father asked. I answered, "They want respect."

The George Floyd episode convinced this conservative white woman of the validity of the June 3, 2020, commentary by Chicago Tribune columnist Dahleen Glanton.

My dad lives in an expensive Dallas retirement facility. He said he very much likes the black employees who wait tables, etc. "Dad, how many black people live there?" "Not many." "Why?" He finally concluded that seeing so many white faces dissuaded blacks from choosing that location.

We are too tribal on both sides. Legislation cannot solve the problem of insidious racist subversion of attempts to seize equal opportunity. Every one of us of every tribe needs to intentionally embrace knowing our neighbor through inclusiveness.

I love my casual black friends and associates. Have I ever asked them to dinner to talk one-on-one? No. I plan to do my part to bridge this divide and make us all proud to pledge allegiance to our beautiful flag of freedom and opportunity.

Sherry Kitts

Hixson

People's government thoughts appreciated

Thanks, Times Free Press Perspective, for the commentary by Michael Woodward in Sunday's edition about "Beyond the Bible: America's True Founders." Much of his article is basically what I was taught in the '50s and '60s by my pastor, who is a Greek and Hebrew scholar and a strong advocate for our republic form of government. Paraphrasing the closing paragraph of the Woodward commentary:

Our Constitution neither mentions God nor acknowledges the existence of a national creed. In it, that is in our constitution, sovereignty rests with the people, not God; we the people are the absolute final source of authority in our government of the people by the people and for the people!

Woodward gives credit to our religious founding fathers and the principles they stood for. If our current religious leaders, in particular our pastors, do not begin to stand for a righteous government with its authority from the people of the United States, will we lose our government by the people? Will we lose our cities to these godless socialist terrorists protesters, who are supported by rich idiots and managed by uneducated thugs?

Paul Jones

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NASCAR tossed out First Amendment and more letters to the editors - Chattanooga Times Free Press

Snap CEO Evan Spiegel told CNBC on Thursday that it's within the company's rights to restrict the accounts it promotes on Snapchat.

"We've always said Discover is a closed platform, and we choose the types of content we want to promote on our platform. We're well within our First Amendment rights to decide what shows up on there," Spiegel told CNBC's "Power Lunch."

Snap announced last week it will no longer promote President Donald Trump's content within Snapchat's Discover feature. It took the step after Trump on social media addressed riots in the aftermath of the death of George Floyd, saying, "when the looting starts, the shooting starts." Snap's decision quickly drew backlash from the Trump campaign.

Trump's account remains public, however, and users who want to follow him can still do so and will still see his posts. The decision to stop promoting the president was "relatively easy" and "straightforward," Spiegel said.

"There seems to be some confusion about the First Amendment and who that applies to," Spiegel said. "The First Amendment is very specific. It's actually designed to protect individuals and private businesses from the government."

Spiegel pointed to NASCAR as another example. It announced Wednesday that it would ban the display of the Confederate flag at all of its events and properties.

"I think Snap really, we embrace those rights, we're grateful to have a First Amendment in our country, but we want to use our rights to stand up for the things we believe in," he said.

Subscribe to CNBC on YouTube.

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Snap's decision to restrict Trump is within its First Amendment rights, CEO says - CNBC

By WIN GRUENING

Americans were horrified by the senseless killing of George Floyd, an unarmed black man, by a white Minneapolis police officer.

Subsequently, Americans were horrified by the indiscriminate looting and vandalism that accompanied the demonstrations in scores of cities across our nation.

Sadly, the destruction, as well as the violence directed at police forces attempting to maintain order and protect lives and property, were dismissed by many in the media as an unfortunate by-product of frustration and anger of protesters.

To be fair, many peaceful demonstrators, black and white, decried the violence and attempted to prevent more destruction.

There were reports that organized extremists instigated looting and participated in burning down stores, churches, and even a police station.

Unable to distinguish between legitimate protesters and criminal vandals and looters, police were put in an impossible situation, and, in some cases, ordered to stand down while lawlessness prevailed, and cities burned.

In our country, peaceful protest is protected. All citizens have a right to be heard.But the message of the protesters was undermined by the violence and mayhem that occurred.

The medias treatment of Black Lives Matter (BLM) protests, often describing them as mostly peaceful, while labeling nearby rioting mobs as uprisings, was clearly at odds with what America witnessed on their television screens.

Even more stark was the medias selective reversal on Covid-19 mandates.Aided by politicians and talking-heads, organized BLM protests were enthusiastically endorsed throughout the media.In contrast, earlier public positions and protests by business-owners, churches, and organizations advocating for opening up the nations devastated economy were roundly condemned.

Both groups were exercising their 1stAmendment right to protest unwarranted or unlawful government authority. Yet, the reaction to them by the public, local authorities and the media was often diametrically opposed.

Black Lives Matter protests were treated quite differently.

As protests continued, along with public memorial services for George Floyd, it became abundantly clear that Covid-19 mandates werent meant to be applied to everyone just those not demonstrating for an acceptable cause.Governors and mayors across the country encouraged and joined the BLM protests all the while insisting that other large gatherings remain strictly forbidden for health reasons.

Just weeks before, Alaska shop owners objecting to health mandates were widely criticized for putting the lives of their fellow citizens at risk in the pursuit of profits.

Anchorage Mayor Ethan Berkowitz, who joined peaceful protests, also thought lives were at risk, but not in the way you might think.During a recent community radio address, he elevated Black Lives Matter protesters to hero status by saying I see people who are risking their lives to protestin spite of a pandemic.

That comment diminishes the sacrifice of thousands of real heroes in our countrys history who risked and lost their lives defending the constitutional right of all Americans to protest.

The coronavirus doesnt distinguish between conservative and liberal protests. According to some, apparently our 1st Amendment rights do.

The complex and deep-seated issues facing our country wont be solved by quelling debate and limiting personal freedoms of those expressing opinions with which we disagree.

Win Gruening retired as the senior vice president in charge of business banking for Key Bank in 2012. He was born and raised in Juneau and graduated from the U.S. Air Force Academy in 1970. He is active in community affairs as a 30-plus year member of Juneau Downtown Rotary Club and has been involved in various local and statewide organizations.

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First Amendment rights? Only for the Left - Must Read Alaska