Daily Archives: May 3, 2021

Recent months have shown that the phrase free speech is often misunderstood. Americans generally know about the First Amendment, but most cannot name the five freedoms it guarantees the freedoms of religion, speech, press, peaceful assembly and government petition.

Through my work with the First Amendment Museum in Augusta, Ive encountered many people who do not know how to put their First Amendment rights into real, concrete practice. Here are five examples of living your freedoms:

HOSTING A FAMILY DINNER

When I was growing up, my family sat down for dinner together every single evening. It was during those family dinners that we had our most robust, informative conversations, touching on politics, religion and everything in between. From a young age, I learned how to express myself and listen to others, in case I might learn something. And I often did.

While family dinners are less common nowadays, they represent a comforting example of lively discourse. We can learn a lot from our family members, with the tool of free speech in our toolbox.

GETTING A LIBRARY CARD

Of course, theres more to learning than just eating with the family. Even the simple act of obtaining a library card and roaming the stacks of books reinforces the pivotal role that free expression has played throughout human history. Libraries are filled with thousands of books on a wide range of topics, but that would never be possible if the writers couldnt express themselves freely.

Now, we can all reap the benefits of their speech, using it to elevate our own knowledge in many different ways.As the French philosopher Rene Descartes once said, The reading of all good books is like a conversation with the finest minds of past centuries.

USING SOCIAL MEDIA

Perhaps the most popular form of free expression today is social media. Whether youre using Facebook, Twitter or something else, technology has gifted us with unprecedented platforms, which can be used to engage with and contact millions of people around the world.

We can not only post whatever we want (for better or worse), but we can also learn from all sorts of interesting people from family and friends to influencers overseas. Even clicking send on a single tweet is an example of the First Amendment at work.

GOING TO CHURCH

While the First Amendment is most commonly associated with free speech, there are four other freedoms:

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.

For example, freedom of religion is what enablesmillions and millions of Americansto attend church, synagogue, mosque or other house of worship. Whatever your religion, it isAmericanfor you to be able to worship as you choose, without government interference. From Christianity to Pastafarianism, which is the worship of the Flying Spaghetti Monster (yes, its real), we all have the freedom to get in touch with the divine.

PROTESTING PEACEFULLY

The First Amendment also affords us with another freedom: The right of the people peaceably to assemble.

And Americans are living it now more than ever. Last year,as many as 26 million people joined the Black Lives Matter protests after the tragic deaths of George Floyd and other African Americans. They took to the streets, marching, mourning and advocating for change. This also happened during an election year, which saw tens of millions of Democrats and Republicans mobilize on behalf of their respective candidates.

And it was all possible because freedom includes the right to peaceably assemble. Emphasis on the word peaceably: Americans can and should assemble nonviolently, without any rioting, looting and other forms of violence.

So get out there and live your five freedoms! As Americans, the best way to show gratitude for the First Amendment is by exercising it in our daily lives.

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Commentary: How to live your First Amendment freedoms - Press Herald

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Published in NH Bar News(4/21/2021)

In the past several years a number of religious accommodationcases have reached the U.S. Supreme Court, an interesting trendwhere the religious beliefs and rights of individuals andbusinesses conflict with other fundamental rights of employees,students, and even the public. The cases have receivedtremendous publicity and have stirred rancorous debate inclassrooms, bar rooms, and on talk radio. The social mediasoundbites, however, sometimes miss the subtle and not-so-subtlelegal arguments along this collision course.

In 2014, the Supreme Court decided the case of Burwell v.Hobby Lobby Stores, Inc., 573 US 682 (2014) ruling that HobbyLobby's owners' religious beliefs trumped theiremployees' rights to health insurance coverage forcontraception as required by the Affordable Care Act. TheCourt ruled 5-4 that the Religious Freedom Restoration Act of 1993allowed the for-profit company to deny this coverage to itsemployees.

This was followed by Masterpiece Cakeshop, Ltd. v. ColoradoCivil Rights Commission, 584 US ___ (2018), a 7-2 decisionwhich permitted a bakery owner to refuse to bake a cake for a gaycouple's wedding. However, rather than deciding whetherfree exercise or free speech rights are violated by forcing abusiness to provide services to a couple with whose lifestyle theowners do not agree, the Court ruled for Masterpiece Cakeshopconcluding that the Colorado Civil Rights Commission demonstratedimpermissible hostility to religion in finding in favor of thecouple. Noteworthy is that by this time the Supreme Court hadaffirmed in Obgerfell v. Hodges, 576 U.S. 644 (2015) thatgay couples have the fundamental right to marry.

Supreme Court scholar Erwin Chemerinsky in his analysis ofMasterpiece Cakeshop opined that "allantidiscrimination statutes pose a tension between equality andliberty." More precisely, "Is a business'sfreedom to choose its customers [or employees] more important thanthe government's interest in stopping sexual orientationdiscrimination?"

By 2020, the Court had also decided Bostock v. ClaytonCounty, GA, 140 S.Ct. 1731 (2020) ruling that Title VIIprohibits employment discrimination based on lesbian, gay, bisexualand transgender (LGBTQ) status.

Last year, in Our Lady of Guadalupe School v.Morrissey-Berru,140 S.Ct. 2049 (2020) the Court, heldthat the "ministerial exception" which was established inthe Hosanna-Tabor Evangelical Lutheran Church &School v.EEOC, 565 U.S. 171 (2012) precluded twoteachers, employed by different Catholic schools, from pursuingemployment discrimination claims.The ministerial exceptionbars ministers from suing churches and other religious institutionsfor employment discrimination. Although the teachers were notordained ministers, the schools in the consolidated cases arguedthat the exception nonetheless applied because the teachers playeda key role in teaching religion to their students. TheSupreme Court, in a 7-2 vote, agreed.

Things got more interesting when the Equal EmploymentOpportunity Commission ("EEOC") proposed an update to its2008 guidance on religious discrimination in the workplace.The commission voted 3-2 (with the two democratic membersobjecting) to finalize it on January 15, 2021 just days beforePresident Biden took office. The EEOC was clear that theguidance was being updated in large part due to the Our Lady ofGuadalupe decision.

The EEOC routinely issues guidance, which does not have theforce of law, on a number of workplace issues. Guidance isroutinely relied upon by employers, courts, and investigatorsreviewing charges of discrimination in interpreting the federalanti-discrimination laws.

The Biden EEOC, with new leadership, could further modify orwithdraw the proposed guidance or simply refocus its enforcementefforts differently.

On March 5, the Massachusetts SJC ruled in DeWeese-Boyd v.Gordon College that the "ministerial exception" doesnot apply to an associate professor of social work at a privateChristian liberal arts college, and she should be allowed to pursueher claims that the school retaliated against her for hervocal opposition to the school's LGBTQ+ policies. The SJCspecifically noted that the facts of Hosanna Taborand Our Lady of Guadalupe were "materiallydifferent" in that DeWeese-Boyd was neither hired to be aminister or a teacher of religion in a primary or secondary schoolenvironment as in those cases. In Hosanna-Tabor, theemployer was an Evangelical Lutheran church and school, and theplaintiff was a "called" teacher, who had undergoneformal religious training and accepted a formal call to religiousservice. She and her employer both viewed her as a minister,and her employment documents described her as such. The twoteachers in Our Lady of Guadalupe worked in an elementaryschool where they taught all subjects, including religion. Theywere expected not only to teach the faith to their students butalso to guide them "by word and deed" toward the goal ofliving their lives in accordance with the Catholic faith. Theyprayed with the students, attended Mass with them, and prepared thechildren for participation in other religious activities.

As a Professor, DeWeese-Boyd was not ordained or commissioned,not held out as a minister, was not required to undergo formalreligious training, pray with her students, participate in or leadreligious services, take her students to chapel services, or teacha religious curriculum.

The SJC also rejected Gordon College's argument that all itsemployees should come under the ministerial exception as too broadan interpretation which would allow religious organizations tosimply ignore secular anti-discrimination laws.

The Supreme Court will likely see more cases of this nature inthe coming years as both religious and non-religious organizationsgrapple with the inevitable tug that comes with balancing therights of all.

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First Amendment Versus The Civil Rights Act: A Clash Of Titans - Employment and HR - United States - Mondaq News Alerts

My heart thudded as I opened Facebook to see who had shared The Tacks post. It was a link to my article on the schools lack of call to action within the Black Lives Matter movement. It felt like I had almost written a diss track about the failure to be inclusive. And shockingly, I found alumni resharing my post with clapping emojis and hearts. It was, in my 21 years thus far, the most I felt I had exercised my right to my freedom of speech.

There is a special sort of duality that strikes against the sentiments of the First Amendment when one is a journalism student, though. In the classroom, we are taught to exercise our rights, and yet on our campus itself, we could be subject to encounter the hierarchy of the institution. There are two ways in which the freedom of speech and press can be used on a college campus: in can be practiced or it can be silenced.

In my own experience, I have been lucky to attend a college campus that does not bat an eye when Ive published a call to action. In September 2020, I was annoyed that Buena Vista University had failed to acknowledge that there had been summer-long whistleblowing on the issue of race.

I decided to take my concerns to the publishing of one of my first articles as opinion editor, and in the process was as anxious as possible. What if the school president read it and decided that this liberal writer was too controversial and should be kicked out of school? Andrea Frantz, Professor of Digital Media here at BVU, was kind enough to talk me down. As long as youve raised valid concerns and are not openly attempting to place character damage on the university, you have nothing to worry about, she explained. At the time I thought, Okay, Andrea, so basically youre just saying that if Im going down, then you approved this and youre going down with me. However, I have since learned that speaking up on a critique-level to inform and educate is a basic American right.

In other instances, schools are not as open to critiques and fact-induced opinions. Two hours from BV, Iowa State University condemned political commentary written in chalk. The policy came after discriminatory comments were written in chalk against numerous minorities on campus. It was a policy that created a New York Times piece on the issue, seeing that it was a bite taken out of students right to freedom of speech.

Sigal R. Ben-Porath wrote, Students should be encouraged to not rely solely or mainly on identity groups for political expression; rather they should be invited to learn to extend their sense of themselves as political actors beyond their identity groups. This week is First Amendment Week, a week to reinforce the importance of free speech in schools and on college campuses everywhere. As an American citizen, it should be duly noted that squeezed into the most powerful 45 words in our Constitution is the First Amendment. It has become increasingly clear within the last four years and more intensely within the last year that we as a country are unwilling to experience any sort of road block that silences us. Freedom of speech is powerful, it is a right, regardless if you are a student or not.

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Students and First Amendment Week: The Right to Be Loud - BVU The Tack Online

The New York Times recently reported that the The Supreme Court vacated a ruling that Trump violated the First Amendment by blocking people on Twitter. Even though I dont support Trump, I have to say theyre not wrong.

The First Amendment does govern the right to freedom of speech, but hiding that speech from a person is not any violation, especially on a place like the Internet. The Internet and its websites, even if it is a Made in America site, are not only in America. Why should users around the world have to subscribe to the American Constitution when they are not in the United States? The First Amendment has no overlap with the Internet, and should not govern the World Wide Web.

Think of the Internet like the real world. Existing in this digital world the World Wide Web, if you want to truly see how logical this comparison is is a series of different countries. Each country is a website, living at its own address (aka web addresses). From there, each country presents its Constitution in the form of Terms and Conditions. By agreeing to it, you are following their rules. Therefore, the developers of that site are like the Supreme Court, and are allowed to enforce their own rules, even if they dont bend to the needs of the American Constitution. This is their land that they discovered. So if Twitter allows Donald Trump to block people, thats okay.

Theres also the issue of App Store policies. In a way, the App Store is like a boat to these countries (websites). Essentially, the Apple App Store is a quicker way to get you to Facebook, rather than you firing up Safari and typing in the URL to Facebook. If these boats dont like that countrys policies, they can stop their traveltake it off their App Store. The rise of Parler brought forth a unique problem to the digital age: Apple taking it off the App Store for not agreeing with Parlers Constitution. Its Terms and Conditions allowed hateful, racist, discriminatory content on the App Store, according to Bloomberg. (Parler also helped spread word of a small insurgence, if you havent heard, that actually attacked the U.S. Capitol.) Tim Cook, the CEO of Apple, issued a 24-hour warning to improve its guidelines, or the App Store would reduce travel-by-boat to Parler. So, Apple pulled the plug on that conservative trade route.

Cook actually appeared on Fox News in January, where he was asked about Parler. He said, We obviously dont control whats on the internet, but weve never viewed that our platform should be a simple replication of the internet. We have rules and regulations, and we just ask that people abide by those. What he means is the Internets guidelines rely on its founders, creators, and developers not a central power from the real world. Cook did say in an interview with The New York Times that he is open to Parlers return to the App Store, as long as they abide by Apples rules. Parler responded by firing three employees that worked on their iOS development team, a signal that says they no longer plan to rerelease applications for the App Store.

So does online censorship further or deter the First Amendment? JSTOR.org writes, Because it is easier for digital platforms to apply a uniform set of rules across their global operations, the strictest rules become the global norm. Essentially, the First Amendment of the United States Constitution is allowed to limit the United States government. It cannot limit private entities, even if they are based in the United States, because the Internet is a global resource. Why should people in court wearing robes dictate a realm created by nerds and developers?

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The First Amendment and Social Media The Tack Online - BVU The Tack Online

The Supreme Court of the United States heard oral arguments in the consolidated cases of Americans for Prosperity v. Becerra and Thomas More Law Center v. Becerraon Monday. The cases raise First Amendment challenges to aCalifornia law requiring charities to submit to the state a list of the names and addresses of their major donors to the IRS. The Courts decision has potential to affect an array of disclosure laws, and in particular, campaign finance laws or regulations against so-called dark money.

Conservative watchdog groups filed lawsuits arguing that the policy violates the First Amendment, specifically by depriving donors of their privacy in association. According to the plaintiff petitioners, California has no need to compel this sensitive donor information to serve any law-enforcement goal, and the state virtually never uses any of the information for law-enforcement purposes.

Election law expert Rick Hasen predicts that its clear that California will not win this case, and explained that there are multiple roads to such a loss.

The Ninth Circuit applied exacting scrutiny an intermediate level of legal scrutiny and sided with California; petitioners now ask SCOTUS to reverse, arguing that the case is unconstitutional on its face, and that the Court should apply a higher level of scrutiny to the analysis.

Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, Samuel Alito, and Amy Coney Barrettall seemed receptive to the petitioners argument that compulsory disclosure of donor lists has some potential to chill speech.

Derek Shaffer conducted oral arguments on behalf of Americans for Prosperity, and he found a likely ally in Justice Thomas, who opened with an innocuous-sounding hypothetical before raising the specter of cancel culture.

How would it affect your analysis if the organization involved didsomething that was not controversial, such as provide free dog beds, or taking care of stray puppies or something like that? asked the justice.

Shaffer quickly responded that the justices hypothetical facts would not alter his analysis in any way, and pointed out that PETA was one of the many organizations that filed an amicus brief supporting his position in the case.

Justice Thomas continued, raising a line of questioning he would repeat each time he spoke during arguments: What does Californias law mean for donors who might be seen as contributing to a controversial charity?

In this era, there seems to be quite a bit of loose accusations about organizations for example accused of being a white supremecist organization, or racist, or homophobic and as a result become quite controversial. Do you think that sort of labeling would change your analysis? queried Thomas.

Its part of the problem, agreed Shaffer. Precisely because there is such intensity of views and such a proclivity to vilify perceived enemies in your time, it raises the stakes.

It was Justice Stephen Breyer, however, who raised the question about how the Courts decision in this case might affect campaign finance rules.

If you win in this case, it will have been because the interest of the donors in maintaining privacy of their giving to a charity outweighs the interest of the state in having a law on the books that even if it never is actually enforced frightens people into behaving properly, predicted Breyer.

But if we hold that, the elder justice continued, can we distinguish campaign finance laws where the interest is even stronger in people being able to give anonymously? Later in arguments, Breyer questioned whether this case is a stalking horse for campaign finance.

When it was time for Justice Elena Kagan to take her first turn at telephonic questioning, she and Shaffer engaged in a sharp colloquy.

Kagan asked Shaffer to assume that a very substantial number of donors in a very substantial number of charities are not concerned about disclosure, and in fact, they rather like public disclosure of their generosity. Then Kagan asked how such facts would affect the legality of the disclosure regulation. Shaffer refused to concede any potential truth to Kagans hypothetical and the two jousted until Kagan said, lets just take my facts as a given.

Justices Kagan and Sonia Sotomayor were the most skeptical, leaving open the possibility of finding that the petitioners rights were violated but still refusing to strike down the law. As Professor Hasen pointed out, both justices might only agree that the law was problematic on an as applied basis.

Justice Alito departed from the world of hypotheticals, and pressed the attorneys on Californias actual history of using the disclosed information.

Do you doubt that donors to organizations that take unpopular positions on hot-button issues have reason to fear reprisal if those donations are made public? Do you think thats a legitimate fear in our current atmosphere? Or do you think its paranoid? asked Alito.

Acting Solicitor General Elizabeth Prelogar responded that such a result is certainly possible, but that there is no indication in the record that it is a widespread issue affecting the average donor to the average charity.

Justice Kavanaugh quoted from the ACLUs amicus brief multiple times, raising the argument that a critical aspect of First Amendment protection is the right to keep association confidential. Such a focus is a possible indication that Kavanaugh would vote to strike down the law not because of the potential chilling effects related to speech, but rather, because of its effect on free association.

Justice Barretts involvement in this case has been controversial from the start, many arguing that she should have recused herself because a group related toAmericans for Prosperity spentmillions on advertisingsupporting Barretts confirmation.

As if to rehash Kagans earlier exchange with petitioners, Barrett asked Schaffer whether a law prohibiting all speech on a state university campus would be illegal even if no one complained about it. When she turned to Prelogar, Barrett pressed the attorney on the level of tailoring required in the case a likely indication that Barrett would support abandoning exacting scrutiny for the more demanding strict scrutiny.

Chief Justice John Robertstake on the case was somewhat harder to pin down, though some have suggested that Roberts will use the exacting scrutiny standard of review, only to redefine that standard in a manner so strict as to strike down most campaign finance laws.

[image via Erin Schaff/POOL/AFP via Getty Images]

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Justices Appear Poised to Strike Down California Law in Case with Potential to Allow More Dark Money in Politics - Law & Crime

Bill Cotterell, Capital Curmudgeon Published 3:14 p.m. ET May 1, 2021

Bill Cotterell(Photo: Democrat files)

We in the news media tend to treat every proposed exemption from Floridas open-meetings and public-records laws with a skepticism bordering on hostility, even contempt.

More: Want public records? So sue me seems to be states attitude, First Amendment experts say

Some information in the hands of government, some proceedings involving public officials, must be secret for obvious reasons of public safety and security. Still, news outlets will take cases to court whenever a public document is withheld or a meeting is closed, unless there is a specific statutory authorization for such secrecy. If we didnt, theyd probably close Cabinet meetings and legislative sessions some day.

Were as uncompromising on the First Amendment as the National Rifle Association is on the Second. But while elected officials will go to extremes to mollify the NRA, theyre not so skittish about infringing on the states vaunted Government in the Sunshine law.

In fact, sometimes their attitude seems to be that people can have any public information theyre willing to sue to obtain.

So it was good to see the failure of a bill that would have allowed executive search committees to hide the names of people applying for the presidency of state colleges and universities. The House passed the exemption in mid-April by 101-16 vote but it failed 25-14 in the Senate just one vote short of the two-thirds majority it needed.

At least 14 new exemptions were enacted in the past session and eight old ones were renewed. Maybe some were worse than others, but the won-loss bottom line shows what legislators think of open government.

Thats discouraging. It means most legislators are just dandy with secrecy for lists of applicants wanting to be college or university presidents. Under the failed bill (HB 997/SB 220), names of finalists for a campus presidency would have become public three weeks before a final selection vote would have been scheduled.

It can be helpful to find out early if theres something especially bad, or good, in an applicants record. Maybe a faculty member or student will know something that doesnt show up in an applicants resume.

Thats not the reason for openness, though. It really is the principle of the thing. Exemptions should be guarded jealously, granted for only the most serious reasons when some real harm would result from disclosure. Confidentiality is not just a favor given for the convenience or comfort of big shots in academe.

Yes, top-level administrators and managers the deans and provosts, nationally known professors, top corporate leaders or university presidents may not want their boards of regents to know theyre seeking sunnier climes. Well, if they dont get the Florida job, theyll get over it. Sorry if it makes things a little chilly around the faculty lounge or a while.

Football players enter the transfer portal when it suits them. Head coaches change jobs all the time.The way universities treat football, are we to pretend a university president has a position of higher dignity than the sunburned guy with a whistle and a ball cap?

Credit for the narrow escape goes to the Florida First Amendment Foundation. Pamela Marsh, the FAF president and a former U.S. Attorney for northern Florida, wrote an opinion piece last year, when the same bill was up, noting how the state Supreme Court ruled in 1983 that the purpose of the Sunshine Law is to protect the public from closed door politics.

Thats particularly important in higher education.

Foundation board member Bob Shaw, a longtime Capitol reporter for the Miami Herald and former editor at the Tallahassee Democrat and Orlando Sentinel, probably knows more about open government than the legislators who voted on the confidentiality bill.

He sent out an alert urging FAF members to contact legislators in opposition to the bill.

Floridas colleges and universities have soared in the rankings, led by presidents selected in the sunshine, Shaw wrote. If a person wants to hold such a job that requires the highest levels of leadership, experience, confidence in decision-making, and financial responsibility, that person should be prepared to be vetted thoroughly and must not fear public scrutiny.

As this is written Thursday night, theres one day left in the legislative session. The bill doesnt look likely to be revived this year, although rabbits get pulled out of hats in the closing hours of a session. But we know where legislators minds are, regarding open government, so we will see this unneeded exemption again next year.

Bill Cotterell is a retired Tallahassee Democrat Capitol reporter who writes a twice-weekly column. He can be reached at bcotterell@tallahassee.com

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A close call this time, but lawmakers have a bad attitude on openness | Cotterell - Tallahassee Democrat