Daily Archives: February 24, 2022

So holds Judge Edward Chen in yesterday's Deschamps v. City of Sausalito.The factual backstory:

Mr. Deschamps asserts that he has claims pursuant to 42 U.S.C. 1983. Specifically, he asserts violations of the First Amendment (his "right to associate with pets"), the Fourth Amendment, the Eighth Amendment, and the Fourteenth Amendments. In the complaint, Mr. Deschamps explains that he has brought these claims because "[t]hey gave us 3 days to move to the tennis courts, and now they are taking away the structure I need to keep my cats." The TRO application sheds additional light on Mr. Deschamps's claims. In the TRO application, he states that he will not be allowed to use his "tent structure" and instead will be issued a "standard one" that is 8x6 feet. He asserts that the standard tent is inadequate because "[t]here is not enough space for my cats" and "they are made out [of] really thin material" that his "cats will rip up easily." In contrast, his own tent "is made [up of] strong reinforced canvas[] my cants can't tear up. [If] my cats escape before they acclimate to the tennis courts, they will go astray and may die by getting hit by vehicles or eaten by coyotes."

Say what you will about Mr. Deschamps' plight, and about how government officials should deal with homeless encampments, I agree that the First Amendment isn't implicated here.

Read this article:
"There Is No Right to Associate with Pets Under the First Amendment" - Reason

By Richard Labunski

Updated: 1 day ago Published: 1 day ago

FILE Former Alaska Gov. Sarah Palin reacts as she leaves a courthouse in New York, Monday, Feb. 14, 2022. Palin lost her libel lawsuit against The New York Times on Tuesday, Feb. 15, 2022, when a jury rejected her claim that the newspaper maliciously damaged her reputation by erroneously linking her campaign rhetoric to a mass shooting. (AP Photo/Seth Wenig, File)

Sarah Palin may have lost the first round in her libel suit against the New York Times after the jury concluded that the former vice-presidential candidate failed to prove that the newspaper acted with actual malice when it published an editorial linking her political action committee to the 2011 shooting of 19 people, including former Rep. Gabrielle Giffords, in Tucson, Arizona.

But when Palin appeals, her case has the potential to do more than reverse the jurys verdict. It could fundamentally change the First Amendment by giving conservative judges what they have wanted for decades: the chance to overturn the Supreme Courts landmark decision in New York Times v. Sullivan (1964) and its actual-malice standard. That would make it significantly easier for public officials and public figures to sue those who make inaccurate statements about them.

There was an unusual development in the Palin case. While the jury was deliberating, Judge Jed Rakoff announced that if the jury found for Palin, he would overturn that ruling. Several jurors learned of the judges decision before the verdict was rendered. The court of appeals and the Supreme Court will likely consider whether that improperly influenced the jury.

Nevertheless, that will not be the key issue in Palins appeal. Of much greater significance is an almost 40-year-old Supreme Court case involving a publications negative product review.

In Bose Corp. v. Consumers Union (1984), the court held that to protect the First Amendment, appellate courts have an obligation to closely scrutinize a trial courts judgment when it rules against defendants in libel cases. Like Palin, Bose Corp. was a public figure. The trial judge ruled that the company was able to prove actual malice when its new speaker system was criticized in the magazine. The court of appeals reversed, and the Supreme Court agreed with the appellate court.

Central to the Bose case and Palins appeal is the Courts interpretation of Section 52(a) of the Federal Rules of Civil Procedure. The Bose decision requires appellate courts to conduct a de novo review in cases involving the First Amendment to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression. An appellate court must, in effect, retry the case by conducting an independent evaluation of the evidence to see if it justifies an exception to the usually robust protection the First Amendment provides for almost all forms of speech.

This goes against the way courts usually function. Appellate judges do not see witnesses in person to evaluate their credibility. They dont have access to all the evidence the jury considered. They read briefs from the attorneys and hear oral arguments. Federal Rule 52(a) tries to prevent appellate judges from second-guessing the trial courts evaluation of the facts by prohibiting the reversal of the lower courts ruling unless it is clearly erroneous, a difficult standard to meet.

The Supreme Court, in the Bose case, held that the First Amendment is too important to be subject to the clearly erroneous standard, and it noted that Rule 52(a) does not forbid a review of the entire trial record. But it did not answer a question of great importance: Can appellate courts conduct their own review when the media organization wins at trial, as in the Palin case? Some legal scholars have argued that it is unfair to the plaintiff if such a comprehensive review takes place only if the defendant loses.

The Bose case is mainly about protecting the First Amendment. Justice John Paul Stevens wrote that the de novo requirement reflects a deeply held conviction that judges and particularly members of this court must exercise such review in order to preserve the precious liberties established and ordained by the Constitution. But he did not say that appellate courts can conduct an independent review only when the plaintiff wins at the trial level.

The First Amendment is clearly established in the Constitution, but the right to be compensated for harm to reputation caused by false and defamatory statements predates the Constitution. It has long been considered a necessary exception to First Amendment rights.

Justices Clarence Thomas and Neil Gorsuch have strongly argued that the Sullivan precedent should be reversed, and other conservative members of the court may agree. Justice Thomas wrote, New York Times (v. Sullivan) and the courts decisions extending it were policy-driven decisions masquerading as constitutional law. Instead of simply applying the First Amendment as it was understood by the people who ratified it, the court fashioned its own federal rule(s) by balancing the competing values at stake in defamation suits.

Here are two steps the Supreme Court may take in the Palin case:

First, the court can conclude that the actual-malice standard which requires a plaintiff to show by clear and convincing evidence that the defendant either knew the statement was false or recklessly disregarded whether it was false or not is so difficult to prove that it lets purveyors of false and defamatory speech to go unpunished and those harmed to be uncompensated. The court could devise a standard that is closer to the negligence requirement that most states impose on private persons bringing libel suits, which is much easier to prove than actual malice.

And second, after creating a new standard for public officials and public figures, the court may conduct a de novo review using the ambiguity of Bose as precedent and conclude that Palin met the new standard and grant her damages, thus avoiding a return to Judge Rakoffs courtroom for another trial.

It may take several years for the appellate decisions to be issued in the Palin case, but it seems that the Sullivan precedent and the First Amendment are in danger.

Richard Labunski, Ph.D., J.D., is a retired journalism professor and author of James Madison and the Struggle for the Bill of Rights.

The views expressed here are the writers and are not necessarily endorsed by the Anchorage Daily News, which welcomes a broad range of viewpoints. To submit a piece for consideration, email commentary(at)adn.com. Send submissions shorter than 200 words to letters@adn.com or click here to submit via any web browser. Read our full guidelines for letters and commentaries here.

See the original post here:
OPINION: Palin's lawsuit still poses a threat to the First Amendment - Anchorage Daily News

The U.S. Supreme Court has agreed to hear a First Amendment free speech and religious freedom case with potential major implications for all public employers.

In Kennedy v. Bremerton School District, the Court will determine whether a public school district unconstitutionally violated a former high school football coachs First Amendment free speech and free exercise rights when it suspended his employment after he defied the districts repeated directives to stop praying at mid-field following his teams games.

The case involves multiple significant First Amendment questions for public employers, including the scope of what constitutes government speech and whether public employers may rely on the Establishment Clause to prohibit otherwise private and protected religious expression. The Courts decision to hear the case, particularly with its conservative super-majority, portends the Court broadly curtailing public employers ability to restrict religious expression in the workplace.

Kennedy v. Bremerton School District

A. Factual background

As we discussed in our previous commentary, Kennedy, a practicing Christian, began his career as a football coach in 2008 at Bremerton High School, a public school in Washington state. He initially instituted a practice of praying alone at mid-field that evolved to include simple prayers with student athletes and finally, to longer motivational speeches at midfield after the games with religious content.

In September 2015, the school district ordered Kennedy to stop praying so that the district did not violate the Establishment Clause, and it offered him several accommodations to enable him to pray privately. Kennedy declined these accommodations, insisting that his religious activities must take place at mid-field after the game in full public view. He took to multiple social media sites to announce publicly his non-compliance. Thereafter, the district placed Kennedy on administrative leave, and he was not recommended for re-hire during the annual renewal process.

Kennedy did not apply for a 2016 coaching position. In August 2016, Kennedy sued the school district in federal district court, alleging the district violated his rights under the First Amendment and Title VII, and sought injunctive relief in the form of reinstatement.

B. SCOTUS declines to hear Kennedys bid for injunctive relief

The case has a long procedural history. Most notably, in 2019, the Supreme Court previously declined to hear Kennedys appeal of the Ninth Circuits refusal to grant him injunctive relief in the form of reinstatement during the pendency of his lawsuit. Justice Alito, however, wrote a statement regarding that denial, joined by Justices Thomas, Gorsuch and Kavanaugh, in which he criticized the Ninth Circuit, saying its understanding of the free speech rights of public-school teachers was both troubling and something that may justify review by the Court in the future.

C. The Ninth Circuit sides with school district, affirms dismissal of case

On the merits, in March 2020, the district court granted the school districts motion for summary judgment, holding that the risk of constitutional liability associated with Kennedys religious conduct was the sole reason the district ultimately suspended him. The lower court further held that the school districts actions were justified due to the risk of an Establishment Clause violation if the school district allowed Kennedy to continue with his religious conduct.

The Ninth Circuit affirmed in March 2021. As to Kennedys free speech claim, the Ninth Circuit held that Kennedys prayers occurred within the scope of his official duties as a public employee and, therefore, under Supreme Court precedent, the First Amendment did not protect his speech. The Ninth Circuit specifically noted the following facts in support of its ruling:

Taken together, the Ninth Circuit ruled Kennedys religious conduct occurred in the course of his public duties. The Ninth Circuit further held that the school district had a compelling state interest in avoiding an Establishment Clause violation, therefore justifying regulation of Kennedys speech even if private and protected.

With respect to Kennedys free exercise claim, the Ninth Circuit held that the school district had the same compelling state interest in avoiding a violation of the Establishment Clause, therefore satisfying the onerous strict scrutiny standard to justify the school districts admitted impingement on Kennedys free exercise rights. Specifically, in large part because Kennedy refused any accommodations from the school district that would allow it to avoid violating the Establishment Clause, the court ruled the districts directives to stop praying at mid-field were narrowly tailored to the compelling state interest of avoiding a violation of the Establishment Clause.

What this means for you

All public employers should pay close attention to how the Court rules in Kennedy. The case involves multiple significant First Amendment questions with potential larger implications for all public employers.

The first question involves the scope of what constitutes government speech, i.e., whether Kennedys religious speech came as a public employee, with no First Amendment protection, or as a private citizen, with ordinary First Amendment protections. In general, determining whether a public employees speech is protected under the First Amendment requires a fact-intensive balancing test, with particular focus on whether the speech occurred within the scope of the public employees official duties. The Courts decision to accept this case suggests that at least four, and likely more, members of the Courts conservative super-majority want to ensure that public employers understand and respect their employees rights to religious expression in the workplace. The Court may take this opportunity to broaden how and why quasi-public speech in the workplace like Kennedys prayers are protected under the First Amendment. At minimum, public employers should expect the Court to clarify when a public employees speech is private and, therefore, subject to ordinary First Amendment protection.

The second question confronting the Court is whether, assuming Kennedys speech is private and protected, the Establishment Clause nonetheless compels public schools to prohibit such religious expression. This inquiry will require the Court to weigh the relationship between the Establishment Clause, the Free Exercise Clause and the Free Speech Clause. The Court has trended towards affirming greater (i.e., ordinary) First Amendment free speech protection in recent terms. The Court also seems unlikely to relegate an individuals free exercise rights to the governments interest in avoiding an Establishment Clause violation except in extremely narrow circumstances. At minimum, public employers should expect the Court to clarify the circumstances when the Establishment Clause compels public employers to act against their employees faith that may otherwise constitute religious discrimination.

It is unclear whether the Court will answer these questions narrowly or provide broader guidance. Justice Alitos earlier statement, joined by three conservative justices, suggests the Courts new conservative supermajority is poised to curtail public employers ability to restrict religious expression in the workplace more broadly than just on the facts of Kennedys case.

[View source.]

Read the original here:
Scotus to Assess the Scope of Public Employers' First Amendment Obligations - JD Supra

Arizona state Rep. John Kavanagh knows that being a cop is hard. He spent 20 years as a Port Authority Police Officer before decamping for sunnier climes, so hes always down to back the blue. And so hes sponsored a bill that would make cops lives easier AHEM promote public safety by banning bystanders from recording police from anything closer than eight feet.

Under HB2319 (as amended) which passed out of the Arizona House Appropriations Committee yesterday 7-5 on party lines, it would be illegal to knowingly make a video recording of law enforcement activity, including the handling of an emotionally disturbed person, if the person making the video recording does not have the permission of a law enforcement officer and is within eight feet of where the law enforcement activity is occurring.

The law would not affect the right of the person interacting directly with law enforcement to record, and violation would be a mere petty offense, unless the recorder fails to comply with a verbal warning.

It distracts the cop against the person they are making enforcement against, Kavanagh told the Arizona Mirror, recounting a time he had lost focusduring an arrest and failed to see the suspect dump a large quantity of drugs.

Evidence can be lost, the cop can be assaulted, Kavanagh said, without specifying exactly how a citizen holding up an iPhone is going to cause a cop to be assaulted.

I think you get a better picture from 15 feet away, he added. You get the full scene.

As the Electronic Freedom Foundation points out,the First, Third,Fifth,Seventh,Eleventh Circuits have upheld the right to record police at work, as has the Ninth Circuit which affirmed the right to film police 26 years ago. But Kavanagh has an answer for that, and it is abortion.

Well, obviously.

See, the Supreme Court upheld an eight-foot buffer zone for abortion clinic protestors in 2000, so obviously that means that Arizona can restrict First Amendment activity to stop cops from getting distracted.

I think this fully conforms with constitutionality and weighs officer safety with the citizens right, the publics right, to see law enforcement officers in action, Kavanagh told the AP. And it looks like the state may be about to test that hypothesis, as the law proceeds to the Rules Committee, before heading to the wider chamber for a vote.

Ex-cop lawmaker wants to restrict recording videos of cops [AZ Mirror]House panel OKs revised ban on videotaping police [AP]

Liz Dyelives in Baltimore where she writes about law and politics.

See the article here:
Arizona Looks To Protect Cops From That Pesky First Amendment - Above the Law

A lawsuit over First Amendment rights was settled by Haskell Indian Nations University after Jared Nally, former editor-in-chief of The Indian Leader, sued the school and previous university President Robert Graham. Haskell is required to pay $40,000 in legal fees, but Nally awaits a Supreme Court decision which may alter the cases outcome.

In October 2020, Nally was issued a directive that impeded his rights as a student journalist at Haskells The Indian Leader. The directive instructed Nally to comply with various practices, including not recording anyone at Haskell without notifying them first. Kansas is a one-party consent state.

This directive was issued by Graham, and although it was supposed to be repealed after six weeks, it was active for around 90 days, according to this FIRE article. FIRE, or the Foundation for Individual Rights in Education, is a nonprofit organization that helps students fight for their rights without a financial burden.

Nally was issued the directive after he sent an email to the Lawrence Police Department, asking them for a statement on a staff members death.

Receiving the directive that I got in October was a clear abridgment of free speech on our campus, and it was an example of our student newspapers relationship with the administration, Nally said. If that went unchecked, then we would endanger the future of free press at our university.

According to Haskells Code of Student Conduct, students free speech was only allowed if they were abiding by the universitys Circle Values, which stands for community, integrity and respect, among other standards.

And so, my case was one where the critical coverage on our university wasnt considered respectful, Nally said.

Nally and FIRE officially filed a lawsuit against Graham and Haskell in March 2021, but before that, they started with forms of advocacy, such as writing letters to the university. They first wrote about the directive that Nally received, as well as writing about some of the universitys policies that needed change.

Graham was removed from his position as president after the lawsuit was filed, according to FIRE.

Since Haskell is a federally operated university, they were represented by federal attorneys. This added some challenges to the case.

For Haskell, it was the Department of Justice who was representing the university, so federal attorneys, which adds a couple of interesting procedural wrinkles to the case, said Patton. Otherwise, for FIRE, it was a standard case of trying to come in and defend the rights of this student and these student journalists to keep doing what they need to do to be a voice on campus.

According to Katlyn Patton, who is a staff attorney for FIRE and worked on Nallys case, if the Supreme Court were to say that a First Amendment retaliation under Bivens is appropriate and rules in favor of Boule, FIRE would be able to go back to the district court with the claim against Graham.

Nally and The Indian Leader made a claim against Graham in his individual capacity for damages as the directive he made interfered with the papers operation and harmed them. This claim was initially dismissed because its harder to make that claim with the challenge of it being a federal defendant, according to Patton.

Jared was subjected to the directive for months, really kind of recklessly because Graham said he intended to resend it and just forgot to for several months, Patton said. To recover from that lengthy harm, we were seeking damages. The claim against Graham sought damages against him in his individual capacity for the retaliation he engaged in and that is the only claim that would be subject to an appeal and impacted by the Supreme Court case.

As of now, all of the claims that Nally and The Indian Leader made against the University and other federal officials in their official capacities have been settled through a consent decree.

This could change, though, after the Supreme Court makes their ruling on the Egbert v. Boule case, which should be decided by the first week of July.

This upcoming Supreme Court case could challenge the 1971 case of Bivens v. Six Unknown Named Agents ruling, and this would be ideal for Nallys claim against Graham for damages.

In the Bivens case, the ruling was that federal officials cant be sued for damages regarding the deprivation of a constitutional right.

So, for now, most of the legal work is done until that decision is made.

Our position is, it kind of doesnt make sense to continue arguing it at this stage when that case is pending and should be decided by the end of the term, Patton said.

The outcome so far has been in favor of Nally and The Indian Leader. Haskell Indian Nations University was required to pay $40,000 to FIRE for attorneys fees. Some changes have been made to increase transparency about the funding the paper is getting and when they are supposed to get it, and this was established in a consent decree.

Further, some changes were made to The Indian Leaders Plan of Operations to give students more of a say on who their advisor is. The language was also changed in the Code of Student Conduct.

The university agreed to change the Code of Student Conduct so we dont have any language that would allow for the abridgment of free speech rights, Nally said.

Because of the award settlement for attorneys fees, Nally is under no legal expense for this case.

I think thats the amazing part of nonprofits and being able to help students or other entities out in a situation where we already have the financial burden of education, that we might not have the resources to advocate for our rights, and just because we dont have resources doesnt make that an opportunity for schools to take advantage of that, Nally said.

Nallys path ahead

Nally graduated in December with his bachelors degree in Indigenous and American Indian Studies, but he knew it was important to fix the issue at hand rather than just push through to graduation.

We matriculate through our college careers, and I think its really hard for every instance to go checked, where I think a lot of students who had that experience or may have been censored or retaliated against, kind of just think that its just one more year. If I just get through it, Im done, Nally said. They might not necessarily think about what their actions could do for the next generations of students from kind of stopping that kind of mentality or treatment that might be fostered at the university.

Nally has received immense support throughout the process of this lawsuit and legal situation. He mentioned that one of his greatest supporters was Rhonda LeValdo, who was their newspaper faculty advisor.

I think Rhonda LeValdo, who was our newspaper faculty advisor, played a huge part in supporting the students and the paper throughout this whole process, Nally said. I think she did a great job when we were doing critical coverage about understanding what free press rights were, and the importance of the work that we were doing.

He also mentioned that he has received support from the Native American Journalist Association, the Student Press Law Center and other journalism organizations.

Patton said that its important for student journalists to have their constitutional rights for two main reasons: the benefit of the campus community and society, and the benefit of student journalists themselves.

Even in the recent Mahanoy case from the Supreme Court, Justice [Stephen] Breyer talked about how campuses are incubators for democracy, and students should be learning how to be a journalist, Patton said. Student journalists are on campus, theres a lot of times where theres big campus stories that are important, and local media maybe isnt interested or national media wouldnt be interested, but those stories really need to be told. Campus administrators, like Graham, really need to be held accountable for their actions.

Since graduation, Nally took on a freelance job as a guest editor for Kansas! Magazine and has plans to continue going to school.

I have plans to continue on to grad school, and hopefully gain some skills that are important for our tribal community and government and future sovereignty, Nally said. So, it might not necessarily be graduate school for journalism, but its still going to be a skill set that allows me to work within our community.

Read more from the original source:
Lawsuit settled between former Indian Leader editor-in-chief and Haskell Indian Nations University - The University Daily Kansan