Daily Archives: August 2, 2022

A bill making its way through the South Carolina legislature would place a near-total ban on abortions, prohibiting the procedure except in cases where the life of the mother is at risk.

The measure, a draft of which is currently being considered by the state senate's Medical Affairs Committee, would also criminalize helping a person obtain an abortion including providing information about how to obtain an abortion. Under the current bill draft, a person who provides information could be prosecuted if they know the information "will be used, or is reasonably likely to be used for an abortion" and could face up to 25 years in prison.

Indiana-based attorney James Bopp, general counsel for the National Right to Life Committee, which opposes abortion rights, helped draft the South Carolina bill.

National Right to Life wants to restore full legal protection to the unborn under the law, Bopp said. Since Roe v. Wade has been overturned, we can now do that.

But some legal experts think parts of the bill are on shaky legal ground and may violate the U.S. Constitution.

This particular law is constitutionally overbroad, Eugene Volokh, a law professor at the University of California, Los Angeles who specializes in First Amendment law, said. It covers speech that is constitutionally protected.

According to Volokh, the "aiding and abetting" portion of the draft bill would have more legal standing if it was narrowly focused on illegal abortions in the state.

If abortion is illegal and Supreme Court has said that it could be made illegal, then that does allow punishing at least certain kinds of speech related to abortion just like this is true with all crimes, he said.

The courts have repeatedly decided speech that encourages or solicits a person to commit a crime is not constitutionally protected, Volokh said. Just like assisting in a robbery could carry criminal penalties, he said, assisting in someones illegal abortion could legally carry penalties, too.

Jessie Hill, a law professor at Case Western University, said the problem with the South Carolina bill is it doesnt seem to distinguish between illegal and legal abortions.

For example, there's nothing that says specifically that the abortion being facilitated or about which information is given, Hill said. It doesn't say that that has to be an illegal abortion.

That, Hill said, could lead to punishing people who provide information about how to get abortions in other states, like North Carolina, where the procedure is legal.

If the abortion services are legal in those other states, then giving information about that is not normally a crime. And it can't be, Hill said. The states can't generally apply their laws beyond their own borders in that way.

Hill said criminalizing speech about a legal procedure likely violates the First Amendment since its not inciting or encouraging someone to commit a crime.

Bopp, of the National Right to Life Committee, maintains the bill is focused on illegal abortions and is fully constitutional.

South Carolina only has authority over acts committed in their own state," Bopp said. "And this would be an illegal abortion, which means an abortion illegal under the laws of South Carolina. If an actual abortion occurred outside the state, then it's not covered and it can't be covered.

The Medical Affairs Committee has scheduled a full-day of public input on South Carolina abortion legislation post-Roe for Aug. 17. The draft measure could be changed before going before the full state Senate for a vote.

Excerpt from:
Draft version of SC abortion bill raises concern among First Amendment experts - WUNC

Stuart N. Brotman| Guest columnist

Tennessee Voices: A conversation with Stuart Brotman

University of Tennessee atKnoxville media law and journalism professor Stuart Brotman spoke with Tennessean opinion editor David Plazas.

Nashville Tennessean

With high school teachers nationwide now in the process of planning their return to begin a new academic term, a new piece of valuable summer homework for them is recommended. Its the survey results from the Knight Foundation Future of the First Amendment project. This is the eighth such survey conducted since 2004, and it deserves a close reading and a plan of action for when students return to the classroom.

Viewed over time, there can be a sense of optimism that both American high school students and their teachers have maintained a consistency over many years regarding the notion that people should be allowed to express unpopular opinions. Yet that view now is clouded when they are confronted with offensive or threatening speech. In these instances, the level of support drops below half. And only 57%in this survey indicated that news organizations should be able to publish without government censorship.

Its also revealing that the survey found that gender, raceand ethnicity are related to the willingness of students to say that the First Amendment goes too far. As the Knight Foundation report noted, Students in racial minority groups, women and non-binary students are less likely to feel they are protected by the First Amendment than white and male students.

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Two concrete measures can be adopted now by high schools across the country that would help promote a greater understanding and appreciation for the core First Amendment values offreedom of religious thought and practice; freedom of speech; freedom of the press; freedom of assembly; and freedom to petition governments about grievances.

First, teachers should incorporate discussion of these fundamental democratic values in a variety of social studies classes. Where possible, a structured course on the First Amendment should be added to the existingcurriculum. The Knight Foundation has found that the latter approach can be especially beneficial, since First Amendment coursework can enhance student support for free speech rights.

As schools begin to focus more on diversity, equityand inclusion concerns, they also should be aware that there may be disparities in perceptions about First Amendment freedoms, as the survey noted. Consequently, any curriculum activities in this area should reflect a level of nuance that addresses the concerns of those who feel excluded. Openly discussing these differences can be a powerful real-time demonstration of why a free speech environment is important not just to some students, but to all.

Recent headlines focus on state and local government pressure to remove certain areas of instruction and discussion from our public schools, including reading selections where uncomfortable topics or language may be included. It would be refreshing to see a comparable level of attention including by parent groups asserting greater influence in what their children are taught devoted to what might be beneficial for students to learn more about, rather than purportedly harmful.

Those who believe increasing inclusive civics education is vital to sustaining a democratic society now have a window of opportunity to voice their support for a more robust First Amendment teaching approach in the upcoming school year.

Stuart N. Brotman is the author of "The First Amendment Lives On." He is a distinguished professor of journalism and electronic media at the University of Tennessee atKnoxville.

See more here:
Let's add the First Amendment to the nation's back-to-school checklist - Tennessean

Virginia Commonwealth University boasts that its fraternity and sorority community has enhanced the lives of thousands of men and women over the last 50 years. As a reward for this half-century of service, VCU will ban all first-semester students from joining these groups. FIRE calls on VCU to abandon its senseless violation of students First Amendment rights.

VCUs deferred recruitment policy, set to take effect Aug. 1, bans all students without 12 credits completed at the university from joining all social fraternities and sororities, with no exceptions for transfer students or non-traditional students. By excluding these students from Greek life [r]egardless of incoming credit status or prior affiliation, VCU bans student leaders of chapters at other universities, second-semester seniors about to graduate, and even the president of the United States from rushing a VCU fraternity, merely because they did not complete enough credits at the university. While transfer credit hours will count toward your degree, they will not toward your eligibility to join Greek life.

Why the draconian restriction?

Dont ask VCU, which neglected to list any reason for banning the approximately 6,000 first-semester and transfer students from joining any of its 40 Greek chapters, but not university athletic teams, music programs, or 500 other student groups. Compounding the nonsense, VCU imposes this mandate while extolling the virtues of Greek life, proclaiming to all students how joining these groups can help you find your niche at VCU, offer academic assistance and support, encourage you to be active in student organizations and community service, open doors for opportunity, [and] assist you in developing social skills. Yet VCUs newest students those who stand to gain the most from the plentiful benefits of joining these groups are precisely those the university locks out.

VCUs newest students those who stand to gain the most from the plentiful benefits of joining these groups are precisely those the university locks out.

In FIREs letter to VCU, we explain how the First Amendment does not tolerate such sloppy, paternalistic bans on students freedom of association. No less an authority than the United States Supreme Court has affirmed the individuals right to pick his own associates so as to express his preferences and dislikes, and to fashion his private life by joining such clubs and groups as he chooses. After all, the freedom of association has, for centuries, been at the heart of the American system of government and individual rights, and protects the right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends. This includes a college students right to join fraternal brotherhoods and sisterhoods.

State university limits on this fundamental right must be narrowly tailored to further compelling institutional interests, and must not unnecessarily burden students associational freedoms. VCUs ban does not cut it.

There is no Greek Life exception to the First Amendment.

If this ban is designed to foster students well-being, it falls far short of directly advancing this goal. This is because the very same students that VCU baselessly claims are not fit for Greek life are nevertheless free to work full-time jobs, play Division I sports, and pour their time into hundreds of other student clubs. You dont need to be a Supreme Court justice to see the issues with limiting students First Amendment right to join Greek life while allowing these same students to do more rigorous and time-intensive activities. Thats like a dry campus telling students they must avoid beer and wine, but hard liquor is totally fine.

Apparently VCUs motto, Make it Real, doesnt apply to students First Amendment rights. There is no Greek Life exception to the First Amendment, as public universities must afford students the opportunity to associate with all its student groups. College students selecting extracurricular activities are not children on playdates who require babysitting from watchful administrators they are adults, bestowed with their full array of First Amendment rights.

FIRE calls on VCU to allow all students to reap the full extent of the benefits of Greek life and afford them enjoyment of the full extent of their First Amendment rights by rescinding this deferred recruitment policy.

FIRE defends the rights of students and faculty members no matter their views at public and private universities and colleges in the United States. If you are a student or a faculty member facing investigation or punishment for your speech, submit your case to FIRE today. If youre a faculty member at a public college or university, call the Faculty Legal Defense Fund 24-hour hotline at 254-500-FLDF (3533). If youre a college journalist facing censorship or a media law question, call the Student Press Freedom Initiative 24-hour hotline at 717-734-SPFI (7734).

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Virginia Commonwealth University plans to violate the First Amendment rights of thousands of students with deferred recruitment policy - FIRE -...

American Promise is a nonpartisan group that is fostering a grassroots movement focused on reducing ... [+] the influence of money in politics.

Lobbying has been a part of U.S. politics since our nations early days, but campaign spending has ballooned to new heights in the decade since the U.S. Supreme Courts 2010 Citizens United ruling that said political spending by corporations and other outside groups is protected by First Amendment free speech rights. Since that 2010 ruling, unfettered funds from wealthy individuals, dark money groups, and other special interests (including foreign entities) have flooded U.S. politics as well as airwaves and mailboxes in an effort to curry political favor. In the 2020 election, political spending topped $14 billion, including $1 billion from dark money groups, non-party organizations that dont have to disclose their donors.

But business leaders of small to midsize enterprises are largely left out of this pay-to-play game and forced to play by rules that have been influenced to benefit select industries and corporate giants. This means entrepreneurs are often left behind in the competitive marketplace and society, and on a larger scale the economy suffers from limited growth and innovation. Increasingly, this political arms race also means larger companies must donate to compete, then attempt to reconcile their lobbying and political donations with their public statements on values and societal issues.

During his career as an attorney in public and private roles, Jeff Clements watched what he calls the change in what the Constitution means, the effect of that change on people across the political spectrum, and the loss of the public commons to private enterprise. He decided he couldnt sit on the sidelines, so in 2016 he founded a nonpartisan organization called American Promise to support a grassroots movement focused on reducing the influence of money in politics.

The American Promise proposal is a constitutional amendment that would put reasonable limits on political spending and better enable politicians to act according to their constituents beliefs rather than those of wealthy donors. While an amendment may seem like an ambitious goal, Clements says a long-term change is necessary to address the dysfunctional campaign finance model that Citizens United helped create. He notes that it has support from a large majority of Americans including business leaders and legislatures in 22 states of all political stripes.

As part of my research on purpose-driven business, I recently talked with Clements about his motivations for starting American Promise, how corporations currently engage in political spending, what it takes to advance an amendment to the U.S. Constitution, and why most businesses are on board with reforming the current campaign finance system.

Chris Marquis: Share a bit about the concept behind American Promise and the role that business leaders can play in the organization.

Jeff Clements, founder of American Promise

Jeff Clements: We want to unite Americans to implement what most of us already know we need: a constitutional solution to the out-of-control money in our political system so that effective American self-government, representative democracy and free speech for all Americans is a reality. Business leaders are a key part of the American Promise strategy. At American Promise we try to serve Americans of any political stripe who want to answer this call to action we can be a provider of tools and infrastructure, a connector, or a strategic leader, but in the end constitutional amendments and whether we can get back on track is up to all Americans. It's a network strategy veterans network, business network, social worker network where this issue meets people where they live and engage with each other. They can accelerate their learning about it and peer-to-peer action around it. Business is important for this effort for a lot of reasons. One is that Citizens United and other related cases purport to be businesses friendly. Many business people are saying, No, thank you, we didnt ask for this, and its not good. Its really important that that voice be heard, so we created the American Promise Business Network.

We need to have support for this across partisan lines, and businesspeople, of course, cross partisan lines. No one in business behaves like our politicians do now. Every day, business people are listening, negotiating, resolving conflict and implementing solutions. They are influential and are used to expressing their views, usually in a civil and clear manner. We hear a great interest in taking action from a lot of business people, including the many small and midsize businesses who dont have the capital to play the money game in our broken political process.

These businesspeople want to have a voice and not only as citizens, but as professional leaders whose businesses are impacted by policy decisions. When you look at which businesses actually are able to play in this out-of-control system, its only the largest, most concentrated, most global businesses. Its not the vast majority of businesses in America.

We think that most would welcome the American Promise For Our Freedom Amendment. For example, one company involved in the American Promise Business Network is Pirelli Tire. Its a public company headquartered in Milan, but the American business is based in Georgia. They have a no-political-spending rule they dont do it anywhere in the world. And theyd like their competitors to have to play by the same rules. IBM is another company with a no-political-spending policy.

So this Business Network is important both to help us win and also to carry forward the case that this is not about business versus everyone else. If we as a society dont define rules for when business capital can be leveraged into political capital, we create a systemic dynamic where investments in political spending to control candidates and policy brings a better return than investments in innovation or competition. This enables a few industries to actively hurt the public interest to advance their business interests, either because they have more capital than anyone else or because their business model doesnt work without extracting undue advantage through political spending. We not just as businesspeople but as citizens must prevent that by enabling fair rules and guardrails.

Marquis: Since Citizens United, it seems there is an ability to circumvent individual contributions limits. Why did the Court find businesses could contribute unlimited amounts to PACs when there are limits on individuals? If corporations are people is part of the rationale, that seems inconsistent.

Clements: To be clear, the Supreme Court ruled that anyone corporations, unions, billionaires, you name it, can run unlimited money into elections to influence the outcome, even if the technical limits on direct campaign donations to the candidate still apply. The Supreme Courts theory is that, while direct contributions to candidates have a risk of corruption, so-called independent spending like the money that goes to Super PACs wont influence the candidate or officeholder. Under this theory, so-called independent spending is akin to free speech, so limiting that money cant be justified. Its a syllogism: Money facilitates speech, so money is akin to speech, and Americans should not limit speech, therefore Americans are not allowed to limit money's influence in our elections. Thats a pretty radical new interpretation of the First Amendment. And weve found that most Americans think that its a ridiculous clever lawyer theory, and not how the real world works.

Another major problem were seeing with this legal theory is that the FEC (Federal Election Commission) recently ruled that in state ballot initiatives, there is no law that prohibits foreign governments from spending money. For instance, Ottawa Power, fully owned by the Canadian government, spent $24 million to influence a ballot initiative in Maine. The CEO testified in the Maine legislature after being summoned by some irate senators. One of them asked, Could you do this in Canada? and the CEO said, Oh no Canadian elections are very serious.

Marquis: A constitutional amendment seems like a big step why the need for this instead of another approach? And why do you think the time is right for an amendment?

Clements: Over my career, I saw the top-down, lawyer-driven change in the meaning of the First Amendment and our Constitution lead to deep erosion in civic trust, government accountability, and our ability as a nation to protect the public interest or the public commons against abuses from private power. I think private enterprise is good, but it works best with democracy, checks and balances, and some rules and clarity around whats the public sphere versus the private sphere.

Heres an example: In my role with the Massachusetts Attorney Generals Office, I was involved with tobacco litigation. We were trying to enforce pretty basic laws regarding a buffer for tobacco marketing around schools. Big Tobacco targeted children with advertising outside of schools to get kids addicted because their scientists said, if you can get kids hooked at 15, you have them for life, but if you wait till 21, they're not going to be as susceptible to being a lifetime customer.

The tobacco companies sued, saying the rule against marketing cigarettes around schools and playgrounds violated their First Amendment free speech rights. They didnt debate the public policy; they just said Americans werent allowed to touch them because of the First Amendment. The argument is that targeting cartoon cigarette ads in places where children go to school is free speech. We won that case all the way up to the Supreme Court, but then we lost 5-4 in the Supreme Court case called Lorillard Tobacco Co. v. Reilly. That is a dangerous change in what free speech is supposed to be about in America.

So the reason we need a constitutional solution now is that a constitutional mistake is at the root of our problems. We are at a constitutional fork in the road. In my view, the road were on if we dont correct the Courts constitutional mistakes about money, free speech, and elections leads to oligarchy, social division and unrest, and the deep erosion of the pragmatic, dynamic, free American society. The road of a constitutional amendment gives us a better chance to navigate the challenges of the next century, where we have a responsive government and civic trust because the constitution protects the rights and interests of all Americans, not just the tiny slice of us who can deploy millions in political donations.

Marquis: In the business world, it seems some influence on the government is through organizations like the Business Roundtable, which has been saying that businesses should be focused on stakeholders like employees and other constituents as opposed to just shareholders. But if you look at their work, they lobbied for Trumps corporate tax plan, many of the companies have employees who dont earn a living wage, and other issues. What role could groups like that play in the campaign spending issue American Promise is working to address?

Clements: I think we cant judge too much based on the current system because the current system allows, or even requires, a lot of hypocrisy from those who operate in the system but would like to see it be better. Like a lot of forces, powerful groups like the members of the Business Roundtable can do damage, or they can help drive change. I think our amendment is something that the Roundtable and all business groups could support. For example, the U.S. Chamber is one of the big lobbying spenders, but some of our most committed supporters and volunteers in the Business Network are local and state leaders and members of Chambers of Commerce.

Many of the members of the Business Roundtable or the U.S. Chamber are global and at different orders of magnitude in terms of scope and scale than local and state businesses. But they too will benefit from clear, level playing field rules about political spending in America and the more responsive and responsible political culture that results from that. I hope they can get on board with this effort, too, and at least not be in opposition. When push comes to shove, and were trying to get a vote in Congress and in state legislatures, I would hope that, at a minimum, they would recognize that this is simply sound, prudent constitutional and civic law.

See more here:
In An Era Of Record Political Spending, American Promise Makes The Business Case For Constitutional Reform - Forbes

University Relations

Danielle Weatherby

In this month's Short Talks from the Hill, Danielle Weatherby, professor of law, spotlights issues that Americans are struggling with right now.

Can we express opposing viewpoints without attacking each other or threatening the First Amendment? Can parents gain more control over the education and upbringing of their children without marginalizing some students and muzzling classroom teachers?

Weatherby addresses these questions and offers commentary on what college professors can do to excel as teachers and serve their students during times of political and cultural polarization.

This gap, which probably isn't as wide as it seems, has created problems in the marketplace of ideas, including the American classroom, Weatherby says. One problem is so-called "speech narcissism."

"Speech narcissism is a term that characterizes what I perceive to still be a serious American problem and one of the reasons why we as a country are as polarized as we seem to be today and often find ourselves at an impasse on matters of public policy," Weatherby says in the podcast. "What I mean in the research is that the narcissism reflects the sort of egotism or fixation with one's own worldview and life experiences that makes us essentially unable to listen to opposition viewpoints. Instead of being open to different perspectives, speech narcissism is causing us to vilify individuals who express opposing viewpoints, leading essentially to a chilling effect in discourse and a breakdown in communication and in the exchange of ideas."

Weatherby's research focuses on the intersection of religious exercise and public accommodation laws and First Amendment jurisprudence and its impact on student speech, education law and legal protections for transgender individuals.

To listen to her discuss these issues, click the link above or go to Arkansas Research, the home of research and economic development news at the University of Arkansas.

Short Talks from the Hill highlights research, scholarly work and economic development news. Previous podcasts can be found at the link above or by visiting arkansasresearch.uark.edu.

Thank you for listening!

Original post:
Short Talks: 'Don't Say Gay' and the Polarizing Effect of Speech Narcissism - University of Arkansas Newswire