Daily Archives: March 26, 2022

Oh no! The dreaded heckle veto!

Being heckled and being the victim of the legal concept of the hecklers veto are two completely different things.

If someone botched this issue on a bar exam we wouldnt let them practice law. So how are we letting people who ostensibly teach constitutional law get away with pumping out disingenuously bad legal takes to pollute the publics already horrid legal literacy?

Perhaps its more fair to say I hope these takes are disingenuous and these people really know better. But whether theyre using their legal credentials to mislead the public for their own partisan aims or theyre genuinely incapable of grasping basic constitutional law, it seems like something we should care about.

Because whenever some legal expert takes to the media to bemoan the hecklers veto they genuinely earn this clip.

The phrase hecklers veto is pretty straightforward. It exists when cops use the real or hypothetical risk of heckler violence to charge the original speaker for either inciting the response or, more often, to stop that speaker from speaking in the first place.

The Supreme Court first used the term in Brown v. Louisiana, 383 U.S. 131 (1966) (link courtesy of Westlaw). In that case, civil rights protesters staged a library sit in. In a footnote, the majority noted the risk of a hecklers veto where law enforcement would charge someone with disturbing the peace based solely on the exercise of the speakers First Amendment rights.

Not only is a hecklers veto not the case of someone heckled me, in most cases it requires that no heckling actually occur since the whole point is that the cops use the risk of potential future violence as a prior restraint.

Transforming a hecklers veto into mere heckling does as much violence to the phrase as declaring a hot dog only means a flaming poodle.

We went through all this already with human issue-misser Jonathan Turley, who wrote a long tirade about the hecklers veto while managing to bungle the concept like it was his own work. Turley complained that a poll showed that students feel like its fine to protest against university speakers they disagree with which it is! But Turley branded this a hecklers veto, effectively lobotomizing the remaining semblance of his knowledge of the Constitution.

Unfortunately, Turley isnt alone in this use and abuse of this legal concept. In a Wall Street Journal op-ed yesterday, Ilya Shapiro, of lesser Black women fame, decried the mood during his recent trip to Hastings:

Youd think that law students should have a particular appreciation for spirited and open engagement with provocative ideas. Theyve chosen a career that centers on argument and persuasion.

But alas a hecklers veto prevailed.

No, it didnt. Because police didnt charge him with a crime for showing up. Its not a hecklers veto at all. Now, you could say the tactics of those protesters were unprofessional or counterproductive if you want. Thats an entirely fair debate. But stop pretending the protesters triggered a very specific legal concept when they didnt.

But theyre going to keep this misconception going because conservatives want to bolt hecklers veto onto their distaste for protesters. Because theres actually a legal legacy disfavoring the hecklers veto when theres exactly zilch legal legacy around protesters should let me give my speech uninterrupted.

Why take it to this level? Shapiros description of his Hastings event certainly makes it sound like the protesters crossed the line and committed real infractions. There would be no need to appeal to protesters as anti-free speech based on his description theres no free speech defense to assaulting someone after all.

Could it be that conservatives want to recast protesting as a hecklers veto because they know that, despite their breathless accounts, these student protests almost never result in protesters actually committing any crimes? Hmmmmm. [UPDATE: Speaking of breathless accounts, Ive heard from witnesses to the Yale event that recently made headlines that the WSJ account of shouting down is wildly exaggerated. Which tracks with this observation.]

When protests arent really crossing the line, just change the line.

As we put it in the earlier Turley piece:

William O. Douglas wrote in Terminiello v. Chicago a case much closer to a hecklers veto that speech achieves its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Turley argues that free speech achieves its high purpose when students are docile bullshit sponges for whatever crank comes along.

But, hey, were probably due for one of the scores of ABA non-qualified tweebs now sitting on the the federal bench to jam this reimagined interpretation into a decision further cluttering First Amendment law with the Con Law equivalent of replacing proximate cause with hey, you were in the area buddy!

Mob Rule and Cancel Culture at Hastings Law School [Wall Street Journal]

Earlier: Shut Up And Stop Heckle Vetoing Me, Law School Prof Yells At CloudsBanning Law School Protests To Protect Free Speech Marks New Orwellian Heights

Joe Patriceis a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free toemail any tips, questions, or comments. Follow him onTwitterif youre interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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'Legal Experts' Need To Stop Deliberately Misleading People About The First Amendment - Above the Law

Palin is expected to continue her fight, but given that the judge and jury sided with The Times, her appeal has been characterized as an uphill battle. What different strategies and/or new evidence would her legal team need to introduce to succeed in the court of appeals?

Ironically, a loss may have been exactly what Palin was going for. The judge and jury almost certainly got the result correct under the protective standard of Sullivan, which protects reporting about public figures unless journalists are reckless or intentionally wrong in their reporting. But judges and scholars are increasingly questioning whether Sullivans standard is too protective, and Palin could not have appealed a victory. She needed a loss in order to appeal up the chain of the courts, with hope of getting to the Supreme Court.

If she were to make it to the Supreme Court, how would you characterize Palins chances?

At least two of the current justices, Clarence Thomas and Neil Gorsuch, have indicated that they believe Sullivan should be overturned. Their point is that with the expansion of modern news, Sullivan is too protective of falsehood. I am not sure, however, where Palin could find three more votes to reverse Sullivan. One vulnerable aspect of the law is that the protective standard applies to reporting about any public figure, even those who do not intentionally thrust themselves into the public eye. (Justice Elena Kagan even made such a point in a law review article before she was on the court.) That is not Palin. I think the chance of overturning, or limiting Sullivan is higher in a case in which the plaintiff is more of an I-just-got-caught-up-in-a-public-controversy kind of person.

Some observers and commentators have expressed concern that any Supreme Court change to the Sullivan precedent would have significant detrimental effects on press freedoms. How would you characterize those prospective changes and their respective impact?

Compared to other modern democracies, our standards for libel are much more protective of journalists. There is little doubt that when Sullivan was decided, it was a crucial decision that led to a robust, vibrant journalistic culture. One prominent First Amendment scholar said at the time that Sullivan was occasion for dancing in the streets. But also true is that the Sullivan standard does not deter carelessnessonly recklessness or worseon the part of journalists. When I teach Sullivan, my students and I discuss how a legal rule that under-deters carelessness will increase the amount of carelessness in the system. And more carelessness leads to more falsehoods. In the end, it comes down to a choice between (1) a legal framework that protects journalists at the cost of more falsehoods or (2) a framework that restricts journalists but has fewer falsehoods.

Critics of the outcome have cited that there were no repercussions for James Bennet, who wrongly accused Palin of inciting the murders of six people, and his false accusation was then widely distributed through the papers multiple channels. Why should Sullivan allow this to happen without any penalties for the author? Are the protections for journalists afforded by Sullivan too broad and do they need to be revised?I am of the mind that a good amount of our free speech jurisprudence could use some updating. We in the United States have more protections of speech than any other country at any time in history. I would, for example, rethink the level of constitutional protections provided for corporate speakers, for campaign expenditures, and for violent or injurious speech, among other things. And I do think that reasonable people can disagree about the proper level of protection afforded journalists, especially since journalists now include everyone from reporters at The New York Times to social media influencers on TikTok. We live in a world created in part by Sullivan: a vibrant, pulsing world of news and commentary bombarding us constantlymuch of which contains falsehoods.

Phil Gloudemans | University Communications | March 2022

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Palin v. the First Amendment: what next? - Boston College

The Ninth Circuit has upheld a preliminary injunction stopping the filing or prosecution of new Prop. 65 lawsuits concerning acrylamide pending the outcome of a lawsuit by the California Chamber of Commerce challenging the Prop. 65 warning for acrylamide as violating the First Amendment.

The lawsuit by CalChamber asserts that scientific studies show that exposure to acrylamide in food does not increase the risk of cancer in humans, and requiring cancer warnings for acrylamide therefore compels false and misleading speech in violation of the First Amendment.

Finding that CalChamber had demonstrated a likelihood of prevailing in its lawsuit, in March 2021, U.S. District Judge Kimberly Mueller issued a preliminary injunction stopping both the attorney general and private enforcers from filing or prosecuting new acrylamide cases, stating: the State has not shown that the safe-harbor acrylamide warning is purely factual and uncontroversial, and Proposition 65s enforcement system can impose a heavy litigation burden on those who use alternate warnings. Cal. Chamber of Commerce v. Becerra, 529 F. Supp. 3d 1099, 1119 (March 30, 2021).

The Council for Education and Research on Toxics, also known as CERT, intervened in the lawsuit, filed an appeal from the preliminary injunction, and moved for an emergency stay of the preliminary injunction pending the outcome of the appeal. CERT argued that, as a private enforcer of Prop. 65, an injunction would place an unconstitutional prior restraint on its First Amendment rights.

Although the Ninth Circuit granted CERTs request for a stay in April 2021, allowing acrylamide lawsuits to briefly continue, the decision issued on March 17, 2022, halts new acrylamide lawsuits until a final decision in CalChamber.

In the published, 28-page unanimous opinion, the three-judge panel held that given the robust disagreement by reputable scientific sources over whether acrylamide in food causes cancer in humans, Judge Mueller did not abuse her discretion in concluding that the warning was controversial and misleading. The record also demonstrates, the court stated, that using an alternate warning could create a heavy litigation burden for defendants.

The panel rejected CERTs argument that the injunction was a prior restraint that violated its First Amendment right to petition, holding that the serious constitutional issue raised by CalChamber gave the district court sufficient reason to enjoin Prop. 65 acrylamide litigation until the case is finally decided on the merits.

The record supports the district court's findings," wrote Circuit Judge Mark J. Bennett for the panel. "First, the district court found that the safe harbor warning is controversial because of the scientific debate over whether acrylamide in food causes cancer in humans." Cal. Chamber of Commerce v. Council for Education and Research on Toxics, No. 21-15745, D.C. No. 2:19-cv-02019-KJM-JDP (March 17, 2022).

The record in the case includes declarations from groups such as the National Cancer Institute and American Cancer Society, which declared that dietary acrylamide has not been shown to increase the risk of cancer. However, other organizations, including the International Agency for Research On Cancer, the U.S. National Toxicology Program and the U.S. Environmental Protection Agency, contended that acrylamide is likely carcinogenic to humans.

"Given this robust disagreement by reputable scientific sources, the court did not abuse its discretion in concluding that the warning is controversial," the opinion stated. Id.

The Ninth Circuits decision stops the filing or prosecution of new acrylamide cases pending the outcome of the CalChamber case. Other acrylamide cases are likely to be stayed by stipulation or court order pending the outcome of CalChambers case.

[View source.]

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Ninth Circuit Upholds The Injunction Against New Cal. Prop. 65 Acrylamide Cases - JD Supra

Over a dozen members of the organization Mass Liberation Arizona gathered outside the Maricopa County Attorney's Office on Friday afternoon to celebrate Allister Adel's final day as the Maricopa County attorney.

The group, which spent years castigating the office for controversial practices, such as charging a group of protesters as gang members, cheered on as Adels resignation officially took effect 5 p.m. Friday.

A small marching band played jaunty tunes for a few minutes before Bruce Franks Jr., a spokesperson for Mass Liberation Arizona, approached a podium.

Weve come here today to name the victory that is our removal of Allister Adel from office and celebrate this historic win for the people and by the people, Franks said. Make no mistake, Adel did not resign because she felt accountable for the harm she caused. She resigned because the peoples movement concerned her she saw the writing on the wall.

Franks called on the State Bar of Arizona to disbar Adel for her and her offices role in pursuing felony charges against protesters.

This goes beyond misconduct, Franks said. What Allister Adel and this office set out to do was retaliatory and malicious and weaponized the law in collusion with the deadliest police force in the United States to silence her political critics and to make political prisoners out of hundreds of people who were just simply demanding police to stop killing Black people. Allister Adel must never practice law again.

The street gang charges were bought against 14 people who participated in an October 17, 2020, social justice protest in downtown Phoenix. Police claimed they worked together so they couldn't get arrested and turned violent when officers apprehended them.

The case drew public outcry and intense media scrutiny that ultimately revealed issues surrounding the case, including misleading testimony to a grand jury. By July, 2021, all of the charges against the protesters were dismissed.

Kathy Brody, an attorney who represented one of the protesters facing gang charges, also chastised Adel for failing to supervise her deputy attorneys and seek severe punishments for those exercising their First Amendment rights.

These are reflections of a deeper culture in the county attorneys office that tolerates misconduct by prosecutors and that has been festering for far too long, Brody said. In my years as a criminal defense lawyer in this community, weve seen these failures of leadership at MCAO over and over again.

Christina Carter, another defense attorney, said she has grown used to prosecutors misrepresenting facts, leading to situations where one of her clients faced over 100 years in prison for protesting while carrying an umbrella.

Even after this office was aware of the fact that its prosecutors had fabricated a street gang, the office still fought under Allister Adels leadership to continue prosecuting these cases in full recognition that the charges were false, Carter said. It is ethically unacceptable and it is morally reprehensible when the law is used as a weapon to silence the critics of law enforcement which includes prosecutors.

Heather Hamel, a local civil rights attorney, echoed the sentiments of her colleagues and pushed for others within the Attorneys Office who were involved in the controversial decision to pursue gang charges against protesters to also face consequences for their actions.

It took us a long time to get here, Hamel said. And the only reason why were here is because everybody, everybody here, refused to give up on one another, refused to give up on this community, refused to give up on our hopes for a better future and that power and those hopes are what are going to continue to drive us in holding each and every single person and politician and prosecutor and police officer for what happened. Adel resigning was just the first step and I cannot wait for even more wins.

Adel's resignation sparked a race among potential candidates to gather enough signatures by April 4 to appear on theAug. 2 primary ballot.

During the press conference, Franks declined to publicly endorse any particular candidate but said that he wanted a county attorney willing and able to rebuild the office from the ground up.

"We want to see somebody who understands that the system isn't broken it's doing exactly what it's designed to do," he said.

Continue reading here:
Activists celebrate Allister Adel's last day at MCAO, call for others to be held accountable - The Arizona Republic

Interview by Alexis Mason, Outreach and Operations Manager at the Student Press Law Center.

Student journalists should be at the center of every conversation about student press freedom. Thats why SPLC is bringing you a series of Q&As from active student journalists to talk about their accomplishments, the challenges they face, and to give their perspective on press freedom.

Check out past Q&As here.

Want to be the subject of our next Q&A? Sign up here.

Nakylah Carter is the Arts and Entertainment Editor of The A&T Register. She is studying Journalism and Mass Communications at North Carolina A&T State University and expects to graduate in 2022.

AM: Why is student journalism important?

NC: Student journalism is important because it is a vital part of our community. We keep students informed, and give them a platform to tell their stories. As a student journalist, we have a great opportunity to tell the stories that no one else is talking about, as well as create connections between students.

AM: An important part of being a student journalist is telling the stories of your community and telling your stories. What stories are you telling, or want to tell?

NC: My primary focus is to report on marginalized groups in a way that is not so negative, but more uplifting. Like reporting on the food deserts in East Greensboro. I am on that side of Greensboro, where A&T is located, and there are no healthy food options. There are almost no grocery stores in this area and the food pantry is only open on Thursdays. Another thing I want to prioritize this upcoming year is Greensboros homeless population. I want to report on ways to help them and bring awareness to their situation. Also, this year, we have reported on the recurring problem of overpopulation and the housing crisis. There are students whose dorm rooms have flooded, or their heating and air dont work. There are also students who dont have anywhere to stay; we have seniors living in hotels. These are serious problems that we want to talk about.

AM: Have you experienced censorship or other challenges that are related to the First Amendment or media law?

NC: Personally, I have not. I think the newspaper really promotes freedom when it comes to writing about stuff. Our adviser encourages us to do our job, hold administrators accountable and be professional. Our professors promote real world journalism and encourage us to be authentic journalists. For instance, we have a crisis on our campus right now. For the past two weeks, we have had no Wi Fi and our servers have been down. It seems we were hacked by a third party over spring break, and the university has met with the FBI and the police. Thats all the university is disclosing right now, and the local news stations have not covered the story. So there are a lot of questions right now, and it is our job to get answers. Tomorrow [Mar. 23rd] we are meeting with Todd Simmons, Vice Chancellor of University Relations tomorrow for a one-on-one interview.

AM: What is something that youve learned as a student journalist that could be helpful to other students?

NC: Always go the extra mile. Journalism is one of those industries and fields where you cannot just go to school, do the assignments, graduate and get a job. You have to really grind and do the work. I also learned that you have to advocate for yourself, and go after what you want. And write stories that you are passionate about, because that is where you will shine.

AM: Every generation leaves their mark on journalism. What do you think will be your generations impact/contribution?

NC: My generation thrives on social media. Most young people arent turning on the tv and watching an hour of news. Instead, they are getting their news from social media. So this generation is meeting our audience where they are and using social media to deliver news.

Please check out more from Nakylah and The A&T Register staff here.

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Q&A with Nakylah Carter of The A&T Register - Student Press Law Center

The headline for this story was updated for clarity at 5:45 p.m. Friday, March 25.

A proposal that would make it easier for parents to object to school library books they find offensive is advancing through the legislature.

The measure, Senate Bill 226, cleared the House Friday with a 97-to-61 vote that fell along party lines. It is the latest in a flurry of GOP proposals this session tailored to parents who feel at odds with decisions being made on public k-12 campuses across the state.

Republicans framed the measure as a way to ensure parents objections are considered. Democrats accused their colleagues of trying to appease far-right voters who want to silence critical voices on racism and other social justice issues.

Parents can already object to books they find offensive, but today those objections are reviewed by school committees that include librarians. The bill would hand the decision over to the school principal or a designee. That school official would have 10 days to let the parent know whether the material was deemed harmful and if access was restricted.

The parent could appeal the decision to the local school board, which would then have 30 days to act. The proposal also enshrines the parents right to publicly comment at the boards regularly scheduled meeting.

If parents do not want young children reading some very degrading-type material, then this is a parent engagement process and due process for those parents to be able to challenge these materials, said Waycross Republican Rep. James Burchett, who sponsored the bill in the House.

The bill already cleared the Senate last year but will need to go back to that chamber for a final vote. But its likely to become law, with Gov. Brian Kemp saying earlier this year he wanted to ban obscene items from schools.

The proposal is opposed by the Georgia Library Media Association, the Georgia First Amendment Foundation and others. House Democrats were unified in their opposition Friday.

State Rep. Josh McLaurin, a Sandy Springs Democrat, accused Georgia Republicans of being unwilling to stop the crazy on the right.

Theres something thats dangerous, thats beneath the surface of this bill, that youre facilitating, youre giving a little bit of rope to, giving a little bit of air to, and youre going to tell yourselves today that its harmless, McLaurin said.

But what happens two years from now, four years from now, when that little seed grows, and the disease festers? What happens is you get whats happening outside of a Senate subcommittee for H.B. 1013.

House Speaker David Ralstons bipartisan mental health reform bill was overwhelmingly supported by the House and is backed by a broad range of groups. But conservative activists have loudly opposed the measure in the Senate, with some asserting unfounded claims such as the bill would protect pedophiles.

But Republicans pushed back on the criticism and bashed Democrats for not supporting a bill they argue would allow parents to have more meaningful input on what books their children can access at school.

The legislation, once again, just lays out a process when a parent wants materials reconsidered as to whether they are age appropriate, said Rep. Jan Jones, a Milton Republican and the second more powerful member of the House.

Itll be different decisions in the city of Atlanta than it might be in West Georgia, and it should be. And if you dont like it, theres the local public library and theres your own books at home.

Last month, Forsyth County removed eight books from its school library, including All Boys Arent Blue which is a young adult book about growing up Black and gay in New Jersey and Virginia.

Already this session, lawmakers have taken up similar education bills targeting parental input, including a so-called Parents Bill of Rights dealing with classroom materials, another measure barring parents from being removed from school board meetings and bans on divisive concepts being taught in the classroom.

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Controversial plan to ease school library book ban process clears the House - Georgia Recorder

NORFOLK, VA., Mar. 22, 2022 Today, seven months after filing a lawsuit against Eastern Virginia Medical School with help from the Foundation for Individual Rights in Education, medical student Edward Si has signed a settlement agreement with the university.

Now that weve reached a settlement, said Si, I hope that future students, faculty, and university administrators will learn the importance of the First Amendment and freedom of expression in discussing and sharing bold, new ideas and being able to constructively critique society to be better.

In December 2020, Si tried to establish a chapter of Students for a National Health Program (the student branch of the national organization Physicians for a National Health Program) at EVMS. Recognized clubs receive a variety of benefits, including funding eligibility, and use of campus facilities.

But when Si first applied, the EVMS Student Government Association told him they denied SNaHPs application for recognition because they did not want to approve clubs based on opinions.

To defend his First Amendment rights, Si reached out to FIRE, which sent two letters last year calling on the university to end its viewpoint discrimination and recognize the club. When the school failed to take action, FIRE and Si filed a lawsuit against EVMS university officials. The next day, Si received notice that his club had been approved.

COURTESY PHOTOS FOR MEDIA USE

Public universities are bound by the First Amendment, and it is unconstitutional to deny a student organization recognition granted to others on account of its viewpoint. As part of the settlement, EVMS has revised their student group recognition policies to prevent future viewpoint discrimination. Si sued EVMS in part because their former policies were vague and overly broad, granting SGA members unfettered discretion to deny some student clubs school resources available to others, thereby denying students like Si their Fourteenth Amendment right to due process of law.

Were pleased that EVMS has worked with FIRE to expeditiously revise the policies that violated Edward Sis First Amendment rights, said FIRE attorney Jeff Zeman. Because of Edwards dedication, we believe EVMS students can now express themselves more freely and join with others of like-mind on campus without fear of viewpoint discrimination.

Since EVMS officially granted SNaHP recognition the club has held presentations to introduce other med students to single-payer healthcare, including a talk from the president of PNHP. Si himself traveled with a PNHP delegation to Washington D.C. to advocate for an end to the privatization of Medicare, and he intends to use what he learned from that trip to further his chapters mission next semester.

FIRE took me seriously and eagerly fought to defend my First Amendment rights, said Si. So I say to FIRE: Keep up the good work!

The Foundation for Individual Rights in Education (FIRE) is a nonpartisan, nonprofit organization dedicated to defending and sustaining the individual rights of students and faculty members at Americas colleges and universities. These rights include freedom of speech, freedom of association, due process, legal equality, religious liberty, and sanctity of conscience the essential qualities of liberty.

CONTACT:

Katie Kortepeter, Media Relations Associate, FIRE: 215-717-3473; media@thefire.org

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VICTORY: Med student prohibited from starting a club promoting universal healthcare reaches settlement with Eastern Virginia Medical School -...

Legislation proposed by U.S. Sen. Tim Kaine seeks to address the sloppy data practices that inhibited Virginia and other states ability to track COVID-19 in the early stages of the pandemic.Richmond Times-Dispatch

Ginni Thomas, a conservative activist married to Supreme Court Justice Clarence Thomas who was part of Virginias delegation to the Republican National Convention in 2016, repeatedly urged Trump chief of staff Mark Meadows to overturn the 2020 election, according to newly revealed text messages.Washington Post

Attorney General Jason Miyares announced a new PAC that will target liberal prosecutors he sees as soft on crime.NBC4

Some local Democratic committees are starting to come out in favor of holding new Virginia House of Delegates elections this year. But top party leaders are staying quiet.WRIC

A student settled a First Amendment lawsuit he brought against Eastern Virginia Medical School for being denied the ability to set up a campus organization supporting single-payer healthcare.Virginian-Pilot

Workers at a Virginia Hersheys plant voted against forming a union.Reuters

Danville officials say theyre running out of housing options for Section 8 tenants.Register & Bee

Alexandria school officials are requesting funding to continue having police officers in school buildings, a topic that turned controversial in the city over the last year.Washington Post

An Alexandria motorcyclist claims he was assaulted by people participating in the trucker convoy protest.WTOP

Nikole Hannah-Jones, the New York Times journalist behind the 1619 Project, spoke in Lynchburg.Cardinal News

Busch Gardens is opening a new roller coaster, Pantheon, that reaches speeds of up to 73 miles per hour.Daily Press

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Kaine legislation seeks to improve outdated health data systems and more Va. headlines - Virginia Mercury

Most of the states largest cities have passed ordinances prohibiting discrimination based on sexual orientation and gender identity. In places such as Johnson County, where the laws have become nearly ubiquitous, the regulations add a local layer to court-extended federal and state LGBTQ protections. But more than half of the states population lives in places that arent covered by local ordinances, and the conflict between prohibiting discrimination and guaranteeing religious freedom is likely to continue. Can communities be made safe places for all Kansans?

Jae Moyer felt surprisingly good after attending a Shawnee City Council meeting in August 2019. The council had passed a nondiscrimination ordinance protecting people based on their sexual orientation or gender identity.

Moyer stopped at a gas station after the meeting and was shocked by an increased sense of safety.

I was like, these people cant discriminate against me anymore because we have this ordinance, Moyer says. It was just this really cool feeling. I think community members in general do feel safer because of that.

Moyer, 23 in February, lives in Overland Park, and ran unsuccessfully for a seat on the Johnson County Community College Board of Trustees last fall. They are a part-time student at the college while working full time.

Moyer identifies as gay and gender nonconforming and uses gender-neutral they/them pronouns. They are also the vice chair of the Kansas City metro chapter of Equality Kansas, a group that seeks to stop discrimination based on sexual orientation and gender identity through education, public policy advocacy and political action. Moyer specified that they were speaking to The Journal not on behalf of Equality Kansas but as a member of the LGBTQ community and an engaged citizen with an interest in public service.

Despite feeling safer because of the ordinance, Moyer thinks such prohibitions wont fully solve the problem of discrimination against LGBTQ people. Moyer visited Oak Park Mall last year in Overland Park and people were giving me dirty looks because I had a rainbow on my mask. Somebody called me a slur as I walked past them.

And not every LGBTQ Kansan lives in environments with similar local protections.

Many LGBTQ people feel very alone and unsafe in places like Kansas. It leads to mental health problems and an increased rate of suicide.

But the nondiscrimination ordinances (NDOs) that allow Moyer to feel protected go too far in infringing on the rights of others, says Chuck Weber, executive director of the Topeka-based Kansas Catholic Conference, the public policy arm of the Catholic Bishops of Kansas, and a former Republican Kansas state representative.

Weber says the legal protections local ordinances provide are unnecessary because existing state and federal laws already prohibit discrimination based on sexual orientation and gender identity. He also believes that such local laws violate the First Amendments religious liberty protections, even though ordinances like one passed in Wichita last fall include exceptions for religious groups.

If religious organizations are completely exempt and I dont think they are then theres no problem whatsoever with religious organizations and the NDOs, he says. But the individual citizen, primarily business owners, dont have an exemption. Were deeply concerned about people using the NDO to force private business owners to violate their deeply held religious beliefs.

Yet highlighting such values conflicts feels increasingly difficult for those who see guarantees for LGBTQ rights conflicting with expressions of their faith. Weber says that oftentimes, people who oppose the municipal ordinances on religious grounds dont want to touch the issue by publicly opposing the laws because they end up being branded a bigot, including me.

Perhaps underscoring those dynamics is the difficulty The Journal had in getting some religious organizations in Johnson County to talk on the record about whether anything has changed for them since the passage of nondiscrimination ordinances by several municipalities in the states most populous county. Pastors with seven Christian churches of various denominations in Overland Park and Olathe either declined to comment or didnt respond to requests for comment.

Only Susan Langhauser, senior pastor of Advent Lutheran Church in Olathe, a supporter of such ordinances, responded to the magazines requests for comment last fall.

Weber says many people of faith very likely will try to avoid controversy and conflict over the ordinances and may already be quietly adhering to them, basically forced to violate their deeply held religious beliefs to avoid publicity and public ridicule.

The Catholic Church addresses the issue by teaching authentic love and care, not hate and bigotry, Weber says.

First and foremost, the Catholic Church follows the Gospel and teachings of Jesus Christ, Weber says. The church calls upon all people to treat everyone with dignity and respect. While this does not always happen, and we can all do better, this is the call and invitation from the Catholic Church. The position of the Catholic Church is that we are adamantly opposed to any unjust discrimination.

An increasing number of places in the state have been choosing to formalize protections for LGBTQ Kansans in their communities.

Earlier this year, Wichita became the 20th city in Kansas to implement a nondiscrimination ordinance that protects individuals in private employment, housing and public accommodation as a result of sexual orientation or gender identity. (Disclosure: The Kansas Leadership Center, publisher of The Journal, was paid $17,800 by the city of Wichita to facilitate conversations among stakeholders in the debate and produce a report about the ordinance. The reporter who developed this story did not participate in that effort.)

Wichita occupies a notable spot in the political history of the gay rights movement and its clashes with religious conservatives, events that were detailed in author C.J. Janovys book on LGBTQ activism in Kansas, No Place Like Home. In September 1977 on a 3-2 vote, the City Commission passed one of the nations first gay rights ordinances. The backlash was immediate and fierce.

A local anti-pornography group, Concerned Citizens for Community Standards led by the Rev. Ron Adrian, the pastor of Glenville Baptist Church collected 31,000 signatures to force a referendum on the ordinance. The group reportedly spent about $50,000 on its campaign. That sum included a $10,000 donation from a national anti-gay group headed up by pop singer Anita Bryant, who made an appearance in Wichita to argue for repeal.

In May 1978, Wichitans went to the polls and voted by a 5-to-1 margin to jettison the ordinance. Looking back, the outlines of contemporary clashes are evident, although the adversaries are now better funded and organized, media savvy and politically adroit.

The passage of ordinances in places such as Overland Park and Olathe, the most recent Johnson County cities to have enacted such laws back in 2019, represents significant gains for LGBTQ rights advocates after decades of discrimination, from harassment in public to being fired, and legal setbacks and reversals at the state and local levels. Such ordinances have increasingly been backed by the corporate business community, who see them as tools to help communities attract younger workers and diversify their workforces.

The ordinances typically include financial penalties for violations. Overland Parks imposes a fine up to $1,000 per incident if discrimination is found. Olathes imposes a fine of up to $500 per incident.

They also dont cover every situation. Ordinances in Olathe and Overland Park contain several exemptions, as do most if not all in other cities. Overland Parks exempts religious and nonprofit fraternal or social organizations, federal agencies and Indian tribes. Olathes exempts religious and political organizations, educational institutions, federal and state agencies, law enforcement agencies and employers with fewer than 10 employees.

Overland Park City Attorney Tammy Owens says the exemptions generally are based on rights protected by other laws in the city code. The Olathe exemptions are based on other municipal codes and federal or state laws or legal precedent, City Attorney Ron Shaver says. Local protections hinge on legislation being passed by local governing bodies. But federal protections are based on court rulings. The U.S. Supreme Court weighed in on the issue on June 15, 2020, when it ruled 6-3 in Bostock v. Clayton County (Georgia), which was consolidated with two other related cases, that Title VII of the Civil Rights Act of 1964 provides employment protection based on sexual orientation or gender identity.

In delivering the courts opinion, Justice Neil Gorsuch wrote that Congress in Title VII adopted broad language making it illegal for an employer to rely on an employees sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.

A subsequent decision by the Kansas Human Rights Commission extended protections reflected in that federal case to the state level. But the legal structure that provides protections against discrimination on the basis of sexual orientation and gender identity is relatively recent at all three levels. Even the majority of the local laws that have been put on the books were passed in 2019 or later, and they are rarely formally invoked. Researching the topic last fall, reporter Celia Hack of The Wichita Beacon, a nonprofit news site, found that only two complaints had been filed under LGBTQ-inclusive nondiscrimination ordinances across 15 Kansas cities since 2015.

And although nine of the states 10 largest cities have nondiscrimination ordinances in place that cover sexual orientation and gender identity, protections are confined to locales in just six of the states 105 counties. More than half of the states population, although presently covered by federal and state guidelines, doesnt have similar local protections.

A history of progress and setbacks cities such as Hutchinson and Salina have passed protections for LGBTQ residents only to have them repealed by voters helps contribute to a sense among some supporters that protections are too often fragile in nature. Opponents, many of them conservative and politically active, claim that efforts to clamp down on discrimination clash with their interpretations of Christianity and are an assault of their freedoms.

Although nondiscrimination ordinances make many in the LGBTQ community feel more welcome and supported, unease can linger. Taryn Jones is chair of the Kansas City metro chapter of Equality Kansas. Jones lives in Overland Park and identifies as a cisgender lesbian woman.

I think when you dont have to worry about getting kicked out of your house or losing your job, theres a lot less stress there and more comfort to live, Jones says.

But Jones expresses concern about the possibility of repeal. Passing the ordinances was easier in some Johnson County cities than in others, and the process is always two steps forward, one step back.

Margeaux Seymour, co-chair of Johnson County Pride, feels more welcome and supported and says others also are because of the ordinances. Seymour attended some council meetings where the ordinances passed and felt an overwhelming sense of relief.

But fear remains.

The fear comes from not knowing how the discrimination may manifest or how severe it will be, Seymour says. Will it be defamation of character remarks, letters mailed to homes, harassment, bullying, dismissal of existence or any physical acts? Any of these can happen at any time. This is why these ordinances are so vital to ensuring the well-being, both physical and mental, of those who identify as LGBTQIA+.

Inoru Morris is executive director of the Midwest Rainbow Research Institute, based in Kansas City, Missouri. Morris, who identifies as nonbinary and gay, says nondiscrimination ordinances are monumental because they make LGBTQ community members feel more represented from a policy standpoint and give victims a way to seek justice, though they dont protect them from feeling fear of possible discrimination and are always going to be first-step scenarios.

We need to see a lot more comprehensive policies put into place by governments and governing institutions into creating an inclusive and equitable environment for all peoples, including LGBTQ.

Carolyn Finken-Dove has a somewhat different perspective on the issue as the mother of a daughter who identifies as queer, which used to be a derogatory term but has been reclaimed. Finken-Dove is a board member of PFLAG Kansas City, a politically active organization that supports the civil rights of LGBTQ people. She says a universal remedy through state or federal legislation would be better than individual city ordinances.

Brittany Jones is the director of policy and engagement for the Topeka-based Kansas Family Voice. (courtesy photo)

But for opponents, the passage of NDOs sends a signal that some believers, particularly conservative Christians, are less welcome in the public sphere. Brittany Jones is the director of policy and engagement for the Topeka-based Kansas Family Voice, a Christian organization that fosters biblical values and is active politically. She is a Christian and a lawyer licensed in Kansas. She does not litigate, but in her role with the organization she specializes from an academic perspective in religious freedom and the First Amendment.

Jones says that despite their religious exemptions, the ordinances present some very important religious freedom concerns for organizations and individuals.

Our understanding of the Constitution is that the government is not supposed to impose on peoples religious beliefs; its supposed to allow them to live out those beliefs, Jones says. And these ordinances do just that, and from that perspective theyre huge religious freedom problems.

She says various pastors but mostly everyday people of faith are concerned that the ordinances in the long run target people of faith across the country and are intended to make them comply despite their Judeo-Christian belief about marriage and sexuality. An ordinance is almost a gag order for many of these civic-minded organizations.

She cites as an example womens shelters, whether run by a religious or secular organization, which need to separate men and women to protect women who have been abused by men. She says the ordinances require shelters to allow biological men into their facilities, which has occurred in Alaska, and subjects them to penalties for violations.

Jones says religious organizations should have a constitutional right to provide their services, and governments should encourage them because they base their work on their belief in a higher power and on serving the community based on faith.

These ordinances essentially tell those organizations that theyre not wanted, she says. And in fact, our community needs those organizations more than ever.

Assertions that people who oppose nondiscrimination ordinances on religious grounds are hateful and bigoted are familiar to Jones. She gets called that all the time.

She sometimes invites people with opposing views to get together over coffee and discuss their differing views. A few have accepted her invitations and theyve had civil conversations, but typically I get a disgusted look. More often, shes had these conversations in passing.

She says its very upsetting and just very bad that conversations about important issues often descend to name-calling.

What Ive learned is that normally when people who hold opposing views can get to know me, and likewise when I get to know them, we find out that were all human and we all have value in the eyes of God, she says, and that we have differing opinions but we can still love each other. But when it comes to policy matters, Im never going to surrender and give the government a sword to go after people of faith, and thats what a nondiscrimination ordinance is.

But religious opposition is not universal, either. Nearly three dozen Wichita area faith leaders last fall signed a letter to the editor to The Wichita Eagle in support of Wichitas ordinance.

Langhauser, senior pastor of Advent Lutheran Church in Olathe, says the ordinances reflect cultural changes and growing support for communities who feel no recognition and who consequently suffer from it. Most members of her congregation were happy to learn of Olathes ordinance, though some congregants who opposed it on scriptural grounds raised the issue with her.

She bases her responses largely on nonbinding teaching documents her denomination, the Evangelical Lutheran Church in America, uses on various topics, including one on human sexuality. The denomination uses the documents as a foundation to prompt congregants to think about and discuss the issues.

The denomination has ordained gays and lesbians for years but until 2009 required them to pledge celibacy, Langhauser says. That year, the requirement was lifted for gays and lesbians who were in lifelong, monogamous, committed relationships. It later extended that stance to include people in nonbinary and gender identity categories.

Many members of the denomination opposed the change and felt they had to leave the church because they didnt want anybody to think they believed other than what they believed, she says, which is always saddening to a senior pastor, to look out at your people and say, I dont know why you think everybody has to agree with everything when this just helps us talk about it.

The current polarized political environment leads people to entrench their political views and look for fallacies in opponents arguments, Langhauser says.

She responds by focusing on pastoral care. Conversations and conflicts arise about different scriptural interpretations regarding sexuality, but its always going to come back to the value of one human person being created by God.

She says most congregations she is familiar with struggle to allow congregants to ask questions because it shows a lack of faith. But asking questions was part of Gods DNA with Israel. If a Jewish congregant, for example, converses with a rabbi on an issue but stumbles in their argument, the rabbi will switch sides and try to help you to come to what it is youre really grappling with.

She thinks the church in general has lost its community leadership by discouraging members to ask questions and has forgotten why the rules are there in the first place so we can form community, live together, help each other and worship together.

Christians are called to educate themselves, pray, discern and make decisions about what Scripture is saying, Langhauser says, as what we feel God is informing us, how we feel that Scripture and reason have to go hand in hand, and everybody sees those things in different shades.

So, its kind of audacious to say that theres any group of people who are wise enough and faithful enough to make those decisions for just everybody.

Indeed, Taryn Jones sees little validity to religious exemptions because theres plenty in the Bible that we no longer follow. Using these things to discriminate is just wrong.

As a Christian and a practicing Methodist, Seymour advocates for religion and faith that arent about discrimination but rather unconditional love and caring for humankind. As someone who struggled with identity and self-acceptance as a teenager, Seymour forged strong connections between faith and advocacy for the LGBTQ community.

For Jae Moyer, a nondiscrimination ordinance can provide a sense of safety, somewhat in the nature of Missie Bs, which bills itself as KCs premier gay bar. Last year, the Kansas City, Missouri, managers office and the LGBTQ+ Commission teamed up to paint the crosswalk at 39th and Summit streets, outside of Missie Bs, in the colors of the progress pride flag. (Photo by Jeff Tuttle)

Debates over nondiscrimination ordinances, even in the places where they pass, can be divisive and bitter. And members of the LGBTQ community can find the experience of participating in them hurtful and disillusioning.

Taryn Jones has witnessed conflict during public comment periods at council meetings. It was emotionally draining and kind of traumatic to be sitting in this room with a bunch of people who are saying all these horrible things about you. In continuing to work with council members who were opponents, You have to move past that if you want to get other things done.

Morris says some people always will oppose such proposals and she has attended Overland Park City Council meetings where theres always some individual that causes a scene and uses hateful rhetoric, arguing they should be allowed to discriminate because their religious text says its a sin and violates their religious conscience.

Unfortunately, as neutral as individuals like to pretend that statement is, its not neutral because theres a history of mistranslation with biblical Scripture throughout the United States that hasnt really come into the forefront of conversation, Morris says.

Yet Moyer has seen people on opposing sides of the issue try to find common ground, albeit with mixed results. Angela Stiens, who narrowly won a Shawnee City Council seat last fall, invited Moyer to go to her church, a stereotypical Catholic, cut and dried, fire and brimstone kind of church. They met several other times to discuss the issue, and Stiens was very gracious with me, Moyer says. They discussed why Stiens saw the ordinance as infringing on her religious liberties.

Thats how she saw it, Moyer says. I had tried in depth to explain to her how taxing and harmful that was to the LGBTQ community.

Stiens did not return a call seeking comment about her discussions with Moyer.

Sometimes the debates can be more about the details of the language in the ordinance than they are about overarching ideological debates.

Overland Park City Council Member Jim Kite voted no when his communitys ordinance was adopted. But he and Taryn Jones had met and listened to each others concerns, and I think thats important, she says.

Discrimination is always wrong, Taryn Jones says. While I feel like its important to listen to each side and kind of come to an understanding of where theyre coming from, I dont feel like finding common ground really includes losing part of our rights for the sake of compromise.

Kite has been an Overland Park council member for eight years and won reelection this past fall. He doesnt plan to run again.

He says he voted against the citys ordinance because of ambiguities around one detail it established a duty for all individuals and entities doing business within the city to not discriminate based on sexual orientation or gender identity, among other previously established categories.

Establishing a duty underscored the need to establish a state statute, Kite says, because an appeal would have to go to state court. Kite also says municipal ordinances mainly concern things such as painting your house or speeding tickets and questioned whether taking such action at the municipal level was the right approach.

But he says he supports the principle of prohibiting discrimination against someone based on their sexual orientation or gender identity.

In places where nondiscrimination ordinances are in effect, it doesnt appear that the issue is on the verge of being reopened anytime soon. Instead, disagreements are likely to surface again on other, related topics.

I see it popping up again when we start to talk again about issues on gender identity and affirmation policy, but I think that is a fight for school districts and state legislation, Morris says.

Morris defines affirmation policy as transgender therapies with psychologists, families and children who say they are transgender to lay the groundwork for hormone therapy and gender affirmation surgery when they turn 18.

The values conflict between protecting LGBTQ Kansans from discrimination locally and ensuring that Kansans of faith get to live out the tenets of their faith in private and public life isnt likely to go away anytime soon.

But how communities choose to adjudicate those discussions, and whether they even choose to have them at all, remains an open question that cities and counties across the state might continue to address for years to come.

A version of this article appears in the Winter 2022 issue of The Journal, a publication of the Kansas Leadership Center. To learn more about KLC, visit http://kansasleadershipcenter.org. Order your copy of the magazine at the KLC Store or subscribe to the print edition.

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What is the impact of nondiscrimination ordinances in Kansas? - The Journal at the Kansas Leadership Center

Court proceedings involving two Iowa teenagers accused of killing their high school Spanish teacher will remain open to the public, with a judge ruling that closing an upcoming hearing would undermine confidence in the legal process and infringe on the First Amendment rights of the press.

Last November, the body of Fairfield school teacher Nohema Graber was found in the citys Chautauqua Park. Within days, prosecutors charged Jeremy Everett Goodale, 16, with the forcible felonies of conspiracy and first-degree murder, and Willard Noble Chaiden Miller, 16, with first-degree murder in connection with Grabers death.

Although the two defendants were 16 years old at the time of Grabers death, the serious nature of the crime resulted in both being charged as adults in District Court, rather than as juveniles in Juvenile Court.

Under Iowa law, forcible felonies allegedly committed by a child 16 or older are excluded from the jurisdiction of Juvenile Court. The court can, however, transfer jurisdiction to Juvenile Court after a showing of good cause.

In December, Goodales and Millers lawyers filed motions with the court seeking to move the cases from the District Court criminal docket to Juvenile Court. Separate hearings on the motions to transfer the two cases to Juvenile Court are scheduled for Thursday.

Goodales public defender and Millers attorney each filed motions with the court seeking to exclude the press and public from Thursdays hearings on the transfer issue. Both cited potential testimony that pertains to unspecified confidential information that, if publicly disclosed, might hinder the defendants ability to secure an impartial jury should the cases proceed to trial in April as expected.

Jefferson County Attorney Chauncey T. Moulding and the Iowa Freedom of Information Council resisted efforts to close the proceedings.

Jefferson County District Judge Shawn Showers ruled this week that to close a criminal proceeding, the defendants must first show a substantial probability that irreparable damage to their rights would result from an open hearing, and that closure would be effective in preventing prejudicial publicity that would deny them their right to a fair trial.

Defendants counsel are justifiably concerned with the publicity this case has already garnered, Showers stated in his ruling. The court is concerned with trial by media as much as the defendants. However, the defendants have the burden of showing that their fair-trial rights will be irreparably damaged if the transfer of jurisdiction hearing is not closed to the public. The court finds that defendants have not made that showing at this point in the pretrial proceedings.

Showers said closing the hearings to the public would undermine confidence in the legal process and impinge on the presss First Amendment rights.

Court records indicate Goodale turns 17 on March 29, and Miller turns 17 on Aug. 9.

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Hearing in Fairfield teacher-murder case will be open to press and public - Iowa Capital Dispatch