Daily Archives: September 7, 2022

So what does the First Amendment have to say about pronouns? That is the question posed by a couple of recent lawsuits. In one, a professor is suing Southern Utah University for compelling him to use they/them pronouns when referring to a nonbinary student. In another, a Kansas school district is paying $95,000 to settle a lawsuit brought by a teacher who was forced to use students preferred pronouns against her wishes.

The Kansas settlement means good news for the Utah professor, right? Well, not so fast. The two lawsuits are different enough that one may not have much sway in the other.

In the Kansas case, the teacher objected not only to the schools policy requiring her to use the preferred pronouns, but also to the policy that required her to effectively conceal the students preference when addressing parents. The policy required her to use the students legal name when talking with parents. Pamela Ricard, the teacher, argued that the policy conflicted with her deeply held religious beliefs. Ricard referred to a student as Miss despite the students preferred use of he/him pronouns. Ms. Ricard believes God assigns gender at birth and any policy requiring her to use language that is different from the students biological sex actively violates Ms. Ricards religious beliefs. In this instance, the school district decided to avoid the fight and paid up.

But that doesnt mean Southern Utah will do the same. In that case, as far as I can tell, theres no religious exception. The professor just contends that the Universitys mandate on pronoun usage violates his First Amendment right to call people by whatever pronoun he chooses. As a public employee, Richard Bugg, the professor, has First Amendment protection. But its not unlimited. As an employer, Southern Utah can impose workplace rules that limit speech. For example, a public employee cant harass fellow employees and avoid discipline by relying on the First Amendment. The First Amendment allows public employees to speak out on political topics and otherwise engage in discussions around public controversies.

That will be the issue in the Southern Utah suit if it gets to trial. Does the use of pronouns when addressing a student constitute speech on a public controversy? Id say no and Southern Utah should be allowed to enforce its policy. But, as is obvious, I am not the judge.

Excerpt from:
Pronouns and the First Amendment - Lexology

Dahlia Lithwick will give a lecture in the Osher Lifelong Learning Auditorium on Sept. 15 addressing Supreme Court decisions, such as Roe v. Wade and the separation of church and state.

Dahlia Lithwick, an award-winning journalist, writer, and lawyer, is speaking at Florida Atlantic University on Sept. 15 in celebration of Constitution Day. Her goal is to educate the community about Supreme Court decisions, such as Roe v. Wade and the separation of church and state, all of which impact First Amendment freedoms.

FAU students, faculty, and staff can attend the event at the Osher Lifelong Learning Auditorium for free with their FAU ID. The first 200 tickets claimed will come with a copy of Lithwicks book Lady Justice: Women, the Law, and the Battle to Save America, which attendees will have the opportunity to get signed at the event. FAU students, faculty, and staff can get tickets at http://www.fauevents.com, and members of the public can get tickets for $25 by making an account.

Director of the School of Communication and Multimedia Studies (SCMS), Carol Mills, believes Lithwick will help continue the tradition of the SCMS selecting journalists who are knowledgeable on the issues of freedom of the press. The school is responsible for selecting the keynote speaker, and for this year, the school chose Lithwick.

Although students may enter college thinking primarily about their career trajectory, they should also be preparing to be civically engaged citizens in a democratic society, Mills said. Events like Constitution Day, and the Breezeway Dialogue Series, help all students become more aware of the key issues and concerns that shape our world.

Lithwick is a senior editor at Slate, where she has been writing since 1999 and has also been published by The New York Times, Harpers, The New Yorker, The Washington Post, The New Republic, and Commentary. She is also the host of Amicus, Slates award-winning biweekly podcast about the law and the Supreme Court. She also frequently appears as a commentator on MSNBC.

Dahlia Lithwick is a perfect person [for this event], I would say because she is one of the foremost journalists and commentators covering the Supreme Court today, said journalism professor and event organizer Ilene Prusher.

She hopes that people who attend this event will have an easier time being able to connect the dots between Supreme Court decisions and how they will impact First Amendment freedoms.

[Lithwicks] knowledge of [law] is simply extraordinary. She has an incredible knack for being able to break down legal issues that are both understandable and engaging, Prusher said.

As of late, Lithwick has taken a dim view of the direction the current Supreme Court has taken in regard to personal freedoms.

Published on Slates website, Lithwick says, As the conservative supermajority that controls the Roberts court careens through the remainder of this term, take note of which types of people deserve privacy and spiritual dignity, and the right to be let alone, and which do not.

Lithwick and her staff did not respond to requests for comment by the time of publication.

Jessica Abramsky is a contributing writer for the University Press. For more information on this article or others, you can reach Jessica at [emailprotected]

See more here:
Award-winning journalist and lawyer to speak at FAU on First Amendment freedoms for Constitution Day - University Press

Under the Inflation Reduction Act, the IRS will receive a staggering $45.6 billion to bolster tax enforcement. That means substantially more manpower for criminal prosecutions, civil judgments, and above all, more audits.

Unfortunately, with this great power comes no accountability. Thanks to a recent Supreme Court decision, any IRS agentas well as almost every other federal officerwho goes rogue and abuses their power cant be sued for violating the Constitution.

In Egbert v. Boule, Robert Boule, who owned a bed-and-breakfast, said he was thrown violently against an SUV by Border Patrol Agent Erik Egbert. After Boule filed a formal complaint with the Border Patrol, Egbert contacted the IRS, which promptly audited the innkeeper. That audit, Boule claimed, was retaliation for exercising his First Amendment rights.

WASHINGTON, DC - AUGUST 07: The U.S. Capitol Building, photographed during a series of amendment ... [+] votes, also called "vote-a-rama, on the Inflation Reduct Act at the U.S. Capitol on Sunday, Aug. 7, 2022 in Washington, DC. (Kent Nishimura / Los Angeles Times via Getty Images)

Though the Supreme Court was split on whether Boule could sue Egbert for excessive force (the majority ruled he couldnt), the court unanimously agreed there is no cause of action for Boules First Amendment retaliation claim. As a result, any disgruntled or thin-skinned government employee is free to weaponize the IRS with impunity.

Egbert shines a spotlight on a devastating loophole in government accountability. Had Egbert worked for a sheriffs department or a police department, Boule could have sued under a federal law that authorizes civil rights lawsuits. Codified today as Section 1983, this law dates all the way back to 1871, when Congress enacted the Ku Klux Klan Act to crack down on horrific assaults and lynchings in the former Confederacy.

But federal officers were not included (and still arent). At the time, this omission made sense. Local and state lawmen were either deliberately indifferent or active participants in many of the atrocities committed in the Reconstruction South.

Meanwhile, federal law enforcement had a minimal presence in 1871. Two of the then largest federal policing agencies, Customs and the Postal Service, collectively had fewer than 130 special agents and investigators on their payroll. And throughout the 19th Century, federal courts routinely ordered rogue federal officers to pay damages to those they had wronged, since that was often the victims only recourse.

Times have changed. The federal government now employs over 132,000 law enforcement officers across more than 80 different agencies. Though the vast majority work for either the Justice Department or the Department of Homeland Security, federal law enforcement agents can also be found at the EPA, FDA, NASA, and the National Institutes of Health. But since they are still inexplicably exempt from Section 1983, federal agents are effectively given blanket immunity from constitutional lawsuits.

Partly in response, in 1971, the Supreme Court recognized a limited cause of action that allowed Fourth Amendment lawsuits against federal officers. Named after the plaintiff in the case, Webster Bivens, who was manacled and strip searched by federal narcotics agents, Bivens actions have helped countless victims vindicate their rights.

But since 1980, the Supreme Court has repeatedly refused to extend Bivens (11 times, according to Justice Clarence Thomas). Ensuring victims would have a legal remedy against federal misconduct became a disfavored judicial activity. This contempt for Bivens culminated in Egbert v. Boule, which saw the High Court dramatically tilt the already tipped scales of justice further in favor of the federal government.

Writing for the majority, Justice Thomas declared that federal courts are not competent to authorize a damages action against any Border Patrol agent, regardless of their conduct. For all other federal officers, under Egbert, courts must now reject any Bivens claim if there is any reason to think that Congress might be better equipped to create a damages remedy. That includes even the mere potential for inappropriate consequences.

For his part, Justice Neil Gorsuch would have overturned Bivens entirely, rather than offer false hope to victims. After all, if the only question is whether a court is better equipped than Congress to weigh the value of a new cause of action, surely the right answer will always be no.

Hamdi Mohamud spent two years in federal prison after a local police officer framed her for a crime ... [+] she did not commit.

Less than a week later, Gorsuchs words were already ringing true. The High Court refused to hear the cases of Kevin Byrd, a Texas small business owner who had a gun pulled on him by a U.S. Department of Homeland Security agent, and Hamdi Mohamud, a Somali immigrant who was thrown in jail for over two years on the baseless accusations of a St. Paul police officer deputized as a US Marshal.

Even though both cases involve garden-variety Fourth Amendment claims that had long been authorized by Bivens, Kevin and Hamdi had their Bivens claims thrown out by lower federal courts, simply because the offending officers were federal employees.

By failing to reverse the rulings made by the Fifth and Eighth Circuits, the Supreme Court has effectively rendered Bivens a dead letter in the 10 states governed by those circuits (Arkansas, Iowa, Louisiana, Minnesota, Mississippi, Missouri, Nebraska, North Dakota, South Dakota, and Texas), according to the Institute for Justice, which represents both Hamdi and Kevin.

Without action from Congress, federal agents canand willcontinue to act with impunity. Thankfully, there is already a bill pending. Re-introduced last December by Reps. Hank Johnson and Jamie Raskin and Sen. Sheldon Whitehouse, the Bivens Act would codify Bivens and overturn Egbert.

Unlike the Inflation Reduction Act and other mammoth bills that dominate the Hill, the Bivens Act is refreshingly short and sweet. The entire bill would add just five words (of the United States or) to Section 1983, a reform that would finally authorize civil rights lawsuits against federal officers. If enacted, the bill would ensure that federal agents dont have any extra protections their state and local counterparts lack.

Despite the clear urgency for the Bivens Act, the bill has languished in both chambers; it hasnt even received a hearing. With the Supreme Court adamant that only Congress can hold federal agents accountable, this lethargy is inexcusable.

Read the original here:
With Just Five Words, Congress Can Rein In IRS And Other Federal Agents - Forbes

Updated at 11:50 a.m. ET on September 7, 2022

Fox News is in legal trouble. The media giant is facing lawsuits from two voting-machine companies over segments it aired with Donald Trump surrogates parroting the former presidents made-up allegations that the 2020 presidential election had been thrown by compromised voting machinesinsinuations that Trumps own advisers told him did not hold water.

Defending their client, Fox Newss attorneys have relied heavily on free-speech doctrines established by the 1964 landmark Supreme Court case New York Times v. Sullivanspecifically, the standard of actual malice. This standard says that when it comes to public figures, a speaker must know their statements are false or display reckless disregard for whether the statements are true in order to meet the requirement for defamation. In that particular case, the Montgomery, Alabama, public-safety commissioner, L. B. Sullivan, sued The New York Times over an ad it had published calling for donations on behalf of the civil-rights leader Martin Luther King Jr. Although the ad made some factual errors regarding the police department Sullivan oversaw, the Court ruled that the Times was not liable, because the purpose of the First Amendment was to guarantee that debate on public issues should be uninhibited, robust, and wide-open, and that such debate may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.

This standard has protected the right of Americans of all political persuasions to make absurd, hyperbolic, and sometimes even false statements about their political leaders. This is how it should be. The bar is not unreachable, but it is justifiably high in order to protect public criticism of powerful people. Following former President Trumps calls to open up our libel laws, gutting the free-speech protections of Times v. Sullivan has become a right-wing cause, presumably because some conservatives imagine that the fake-news liberal media will be swiftly bankrupted for saying mean things about the smart and handsome Mr. Trump. But the Fox News lawsuits show that conservatives enthusiasm for gutting Times v. Sullivan would leave right-wing media outlets more vulnerable than perhaps they appreciate.

Read: Do you speak Fox?

In a dissent last year, the conservative federal judge Laurence Silberman called for Times v. Sullivan to be overturned, complaining that the Times and The Washington Post are virtually Democratic Party broadsheets and adding that nearly all televisionnetwork and cableis a Democratic Party trumpet. This is false, but even if it were true, one strains to see what relation it has to defamation law. Like most frustrated news consumers, Silbermans complaints regarding the mainstream press are about framing, emphasis, and story selectionnot facts.

Silbermans position is nevertheless shared by some very powerful people. Three years ago, Justice Clarence Thomas wrote in a concurring opinion that the Supreme Court should overturn New York Times v. Sullivan and rethink the actual-malice standard. That case was a particularly compelling one for his point: It involved a woman who had sued Bill Cosby for libel after the disgraced comedians lawyer accused her of lying about being assaulted by Cosby. The Court declined to take the case, leaving in place a lower-court decision in Cosbys favor on the grounds that the plaintiff had become a limited-purpose public figurea term describing an otherwise private citizen who finds themselves at the center of a public controversyand that the attorneys statements therefore did not meet the actual-malice standard.

New York Times and the Courts decisions extending it were policy-driven decisions masquerading as constitutional law, Thomas wrote. If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we.

In a 2021 case, Thomas reiterated his call for Times v. Sullivan to be overturned and was joined by Justice Neil Gorsuch, who lamented the spread of disinformation on social media and argued that if the actual-malice standard had force in a world with comparatively few platforms for speech, its less obvious what force it has in a world in which everyone carries a soapbox in their hands. Its always interesting to see which contemporary developments originalists decide are relevant to their constitutional interpretations.

Thomass and Gorsuchs arguments are more compelling and sophisticated than Silbermans, but its also clear that Silberman is closer to the mainstream conservative view on the subject, which is that Times v. Sullivan should be overturned in order to discipline the liberal media.

Joshua A. Geltzer and Neal K. Katyal: The true danger of the Trump campaigns defamation lawsuits

The First Amendment guarantees a free press to foster a vibrant trade in ideas. But a biased press can distort the marketplace, Silberman wrote. And when the media has proven its willingnessif not eagernessto so distort, it is a profound mistake to stand by unjustified legal rules that serve only to enhance the press power. Again, this is an editorial, not legal, analysis, an expression of desire to punish the press for its misbehaviora rather ironic frame for a so-called defense of free speech. None of Silbermans concerns, to the extent you take them seriously, would be addressed by overturning Times v. Sullivandiverging ideological interpretations of the same facts would persist without a stronger liability shield. In Britain, where there is no actual-malice standard, major media outlets are widely considered to be more explicitly aligned by ideology and hardly free of distortions.

The irony of Trumps complaints about the permissiveness of American libel law, and right-wing jurists support for gutting the actual-malice standard, is that many conservative media outlets would suffer without itperhaps more than the mainstream press outlets they hope to bring down. Those institutions would survive. But all the right-wing shitposters calling for the medias downfall? Might not be so great for them.

The loss of the concept of a limited-purpose public figure would make things very hard for outlets and personalities who thrive on finding new targets for opprobrium. Beyond the legal trouble facing Fox News, the parents of a child murdered in the Sandy Hook massacre recently successfully sued Alex Jones, the far-right proprietor of Infowars who counts Trump among his admirers, after he alleged that the incident was a false flag operation orchestrated by the government. The verdict was taken in conservative circles as an attack on free speech, notwithstanding the insistence that it should be easier to sue the media for saying things that are false. In 2020, a federal judge dismissed a defamation lawsuit against the Fox News host Tucker Carlson filed by a woman who claimed to have had an affair with Trump. Carlson accused her of extortion on his show, but the judge dismissed the suit on the grounds that the host is not stating actual facts about the topics he discusses and is instead engaging in exaggeration and non-literal commentary.

The actual-malice standard has enabled the creation of an alternate universe of conspiratorial disinformation about political figures conservatives opposesuch as the birther myths around Barack Obama and the dark, elaborate fantasies concocted about the Clintons. In plain English, conservative media have gotten used to being able to say outrageous things without any adverse legal consequences and have built devoted audiences under the umbrella of this protection. Tens of millions of Americans trust and believe the things they hear from these outlets, viewing nonconservative media sources as untrustworthy. These outlets have abused that trust by consciously misleading the population about serious matters, such as the risks of the coronavirus pandemic and the origins of the Capitol riot. Again, this is their First Amendment right, however infuriating their conduct might be.

David French: Free speech for me but not for thee

Even with the current high standard, somesuch as Jonesstill face legal consequences for their actions. But without that standard, conservative outlets that engage in similar conduct would be much more likely to face legal threats. On the other hand, if Britain offers any example, mainstream media outlets such as The New York Times and The Washington Post would survive Times v. Sullivans demise. These organizations can afford strong legal representation and, crucially, maintain much stricter rules about what they publish. That does not make them infallible or above criticism, and it doesnt mean that they never make libelous errors. But their institutional standards ensure that the overwhelming majority of the time, their coverage is rooted in facts. Many of their detractors in the right-wing press are much more reliant on, to use a technical term, bullshit.

Overturning Times v. Sullivan would undoubtedly have a chilling effect on free speech. We can infer this simply from the era before Times v. Sullivan, during which public officialsmany of them segregationistsused libel law to stifle criticism of their official conduct, a practice that weighed heavily on the unanimous majority in Sullivan. Fox Corporations chief executive is suing an outlet in Australia that has been critical of the networks coverage of the 2020 election, taking advantage of the absence of speech protections it is eagerly availing itself of in the United States. This is how good legal representation works, but it also reflects an approach to free speech that is more mercenary than principled.

Even if they were unsuccessful in intimidating large outlets such as the Times or the Post, wealthy and powerful people would likely find it much simpler to use the threat of litigation to silence those without deep pockets or institutional support. It would be little trouble to target the average person shooting their mouth off on social media, but the media outlets that conservatives hate would continue to exist and continue to cover public affairs in a way they disapprove ofthat is, without sounding like the Trump advisers at Fox News.

Without the actual-malice standard, the strong would likely find it easier to silence the weak. It is not hard to understand why the justices, powerful people who are frequently subject to withering public criticism, might be sympathetic to that outcome. But conservatives who believe that the end of the actual-malice standard would fatally injure the mainstream outlets they loathe should probably be careful what they wish for.

This article originally misidentified the entity whose chief executive is suing an outlet in Australia.

Here is the original post:
The Right-Wing War on Free Speech Could Backfire - The Atlantic

Dive Brief:

Former President Donald Trump took an interest in protecting free speech and religious freedoms on college campuses.

In 2019, Trump signed an executive order that tied federal research dollars to colleges protecting First Amendment rights or their own free inquiry policies, depending on whether they were public or private institutions, respectively.

The free inquiry rule the administration issued in 2020 is a follow-up to that executive order.

The regulation forbids public colleges from denying religious student groups the same rights such as funding as other clubs because of beliefs, practices or policies informed by their faith.

It also outlines how religious institutions can claim exemptions to Title IX, the law banning sex-based discrimination at federally funded schools.

Critics said many elements of Trumps free inquiry rule were redundant, as public institutions must already follow the First Amendment and higher education as an industry values principles of free expression.

The Education Department said in August 2021 that it intended to rescind parts of the rule, but officials did not specify which ones. The department expects public colleges to ensure they protect constitutional rights, Michelle Asha Cooper, acting assistant secretary for postsecondary education and deputy assistant secretary for higher education programs, said at the time.

We urge public colleges and universities and their students to engage thoughtfully on these matters, holding paramount the goal of creating environments in which all students have the opportunity to learn and thrive, Cooper said in a statement.

The Office of Management and Budget, or OMB, must review a rule before its put forth to evaluate whether a federal agency considered the consequences of the regulation, good or bad. Then, the public can offer feedback before its finalized.

Likely, a delay at OMB doesnt signal the Biden administrations draft free inquiry rule is in jeopardy, said Terry Hartle, senior vice president of government relations and public affairs at the American Council on Education, the sectors top lobbying group.

The administration has many policy matters on its plate, Hartle said, including recent action to cancel up to $10,000 in student loans for borrowers earning under $125,000 a year, and up to $20,000 for those in the same income bracket who received federal Pell Grants in college.

Read more here:
Where is the Education Department's proposed religious liberty and free inquiry rule? - Higher Ed Dive

A source inside Project Veritas leaked the diary of Ashley Biden to a reporter at a conservative news outlet, according to Noel Fritsch, publisher of that outlet, National File, which first published the diary in October 2020, just ahead of the presidential election.

Project Veritas founder James OKeefe had suspected an employee of his organization leaked the document, the New York Times previously reported, but Fritschs confirmation firmly establishes the links in a chain that began in a Florida drug rehabilitation center and led to a predawn raid of OKeefes home last year.

The diary was left behind by Biden, the daughter of President Joe Biden and first lady Jill Biden, at a friends house during a rehab stint in Delray Beach, Florida. Aimee Harris, who subsequently lived in the house, discovered the diary, and with Robert Kurlander concocted a Coen brothers-level plan to sell it. Harris and Kurlander recently pleaded guilty to the charge of conspiracy to commit interstate transportation of stolen property, with prosecutors confirming the diary as authentic. Kurlander, according to prosecutors, is now cooperating with an ongoing investigation, and a key question being probed is whether Project Veritas understood the diary was legally obtained (as the organization has asserted) or whether it had any role in instructing Harris and Kurlander to steal further personal items of Bidens in order to allow it to authenticate the diary. (The question could hinge on whether Biden abandoned the items, or was storing them at the friends home, and planned to return. Prosecutors allege the items were stored, not abandoned.) No charges have been filed against Project Veritas or its employees.

Fritsch said that OKeefe, as far as he knew, did not authorize the leak. Its kind of ironic, we had to sort of Veritas Veritas in order to get the thing broken and out into the news, he told The Intercept. He said he wanted to speak with The Intercept in order to raise the alarm about the press freedom implications of investigating Project Veritas. During the Bush administration, he noted, journalists routinely denounced efforts to expose the sources of reporters. Were doing the same thing now, but were not hearing the phrase chilling effect at all, he said.

The American Civil Liberties Union and the Reporters Committee for Freedom of the Press have both expressed skepticism about the propriety of the investigation into Project Veritas, and in particular the raid of OKeefes home, warning of its press freedom implications. Press freedom advocates who differ with Project Veritas politically, and who are queasy about the deceptive tactics the group infamously deploys, have also voiced opposition to the raid.

This is just beyond belief, University of Minnesota law professor Jane Kirtley, a former executive director of the Reporters Committee for Freedom of the Press, told Politico. Im not a big fan of Project Veritas, but this is just over the top. I hope they get a serious reprimand from the court because I think this is just wrong.

The diarys most newsworthy moments are suggestive but stop short of making any concrete allegations against Ashley Bidens father. In the most-often quoted passage, she writes, Hyper-sexualized @ a young age. What is this due to? Was I molested. I think so I cant remember specifics but I do remember trauma I remember not liking the woolzacks house; I remember somewhat being sexualized with [a cousin]; I remember having sex with Friends @ a young age; showers w/my dad (probably not appropriate). Being turned on when I wasnt supposed to be.

In general, it is legal for a news outlet to publish stolen documents when they are of public concern. Many whistleblowers, after all, do not have legal authority to leak the documents they are making public. Barring journalists from publishing stolen documents threatens First Amendment rights and gives the government tremendous power to censor the press. But it is also generally understood that journalists may not participate in any crime to obtain information, or ask anyone else to. So, if Project Veritas encouraged the pair to steal more items, the outlet could face charges. But if Project Veritas thought the items were abandoned by Biden rather than stolen, they could be protected by the First Amendment.

Project Veritas is in the crosshairs despite making the decision not to publish the diary. The guy didnt even break it and hes getting treated like an enemy of Stalin, said Fritsch. OKeefe, in an email to staff obtained by the New York Times, argues that publication of the diary would have been seen as a cheap shot and backfire against Project Veritas. On October 24, the National File published excerpts of the diary, and followed up two days later by publishing the full version. The outlet explained at the time, National File obtained this document from a whistleblower who was concerned the media organization that employs him would not publish the materials in the final days before the presidential election.

National Files readership is largely made up of an extreme right-wing audience, many of whom, Fritsch said, have been banned or suspended from Big Tech platforms like Facebook and Twitter. Still, it has managed to break some major stories, including being the first to publish an image from former Virginia Gov. Ralph Northams medical school yearbook, showing a man in blackface beside a man in a Ku Klux Klan robe.

The Times also reported that the Project Veritas whistleblower adds that his media organization chose not to release the documents after receiving pressure from a competing outlet. Fritsch said the competing outlet referred to a conservative outlet that the Project Veritas employee told him urged Project Veritas not to publish the diary.

Federal prosecutors say that Project Veritas paid $40,000 to obtain the diary, a pursuit that continued even after OKeefe made the decision not to publish, according to prosecutors.

Harris and Kurlander hadinitially hoped to sell the diary to the Trump campaign and brought it to an event in Florida in an effort to show it to Donald Trump Jr. The Times reported that Trump Jr. advised them to turn it into the FBI. Instead, they reached out to Project Veritas. Fritsch said the plot to get the diary to Trump Jr. was not well thought out. If theyre in some sort of seaside, boat-in-the-water fundraising event of whatever, Don Jr. is going to jump in the dang canal if somebody tries to push a diary like this in his hands, he said.

Project Veritass attorney, Paul Calli, declined to comment.

Continued here:
A Project Veritas Employee Leaked Ashley Biden's Diary - The Intercept

INDIANAPOLIS On Saturday, members of a white nationalist group marched throughout downtown, including on Monument Circle during the Indianapolis Labor Fest.

It has not yet been made clear why the group was marching, and it hasn't been posted under the action section on the group's website yet. Though, the group did post videos of its demonstrations in Indianapolis on one of its Telegram channels.

On Monday, Indianapolis Mayor Joe Hogsett delivered a firm message to the group.

"You are unwelcome in Indianapolis if your message is going to be purely about division, disunity and hate for one another. I speak not just for Indianapolis but for America as a whole," Hogsett said.

While the hope of Hogsett and many others is that the group will stay out of the Circle City, they are well within their First Amendment right, according to the Federal Bureau of Investigations.

In a statement to WRTV, they said:

(The FBI) is committed to protecting the First Amendment rights of all Americans to express their views peacefully during demonstrations. We also have a responsibility to ensure public safety and will not tolerate violence or destruction. We are committed to working closely with our local, state, and federal law enforcement partners to stop any individuals who intend to commit violence or criminal activity under the guise of carrying out a demonstration."

Mayor Hogsett explained that the city, nor the authorities, knew of the groups plans for Saturday.

The randomness and fear created by the march beg the question of what to do when you encounter a protest of the sort.

According to Rachel Carroll Rivas, Interim deputy director of research and analysis for the Intelligence Project with the Southern Poverty Law Center (SPLC), these marches are always privately planned and unannounced.

This allows for the group to spread its message without disagreements forming along their route.

People need to be prepared to counter these dangerous ideas, especially among young men, particularly young white men that theyre luring into their movement, Rivas said.

Rivas said the march is a reminder of the importance of having knowledge that people with extremist ideas exist.

I encourage caretakers, media, really just anyone to be informed about these ideas, and be prepared to counter them with youth, with friends, with family members, Rivas said. Because theyre really seeking to manipulate people into supporting these ideas and giving the air of acceptance.

SPLC and the Polarization and Extremism Research and Innovation Lab (PERIL) have put together a guide with videos about how to speak to your children and loved ones when you come across extremist groups.

Their guide, which can be found here, comes in English, Spanish, German and Portuguese.

WRTV did not reach out to the Patriot Front for comment.

Go here to see the original:
'You are unwelcome in Indianapolis' Mayor condemns white nationalist group that marched on Saturday - WRTV

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Negotiators for the Senate's gay marriage bill face key questions on what it will look like and how they'll pass it as they continue to meet in an effort to advance the legislation before the midterms.

Among the top issues, some Republicans are asking for an amendment to address religious conscience protections, which may be needed for the bill to clear the Senate's 60-vote filibuster threshold. Additionally, the chamber's limited floor time means the bill is competing with other priorities for votes and debate.

A Capitol Hill Democratic source told Fox News Digital Tuesday that senior Senate Democrats had been discussing the possibility of including the bill in a must-pass government funding package, called a continuing resolution. In theory, this could save floor time by combining multiple Democratic priorities and enticing some reluctant Republicans who want to avoid a government shutdown to vote for the bill.

However, Sens. Tammy Baldwin, D-Wis., and Rob Portman, R-Ohio, original sponsors of the Senate marriage equality bill, on Tuesday cast some doubt on the idea though they did not outright reject it.

GAY MARRIAGE BILL, OTHER MAJOR ISSUES SIT IN LIMBO AS SENATE RETURNS FROM AUGUST RECESS

Sen. Rob Portman is one of the lead sponsors of a Senate bill to codify gay marriage rights on a national level. (Bill Clark/Pool via AP)

"We're gonna talk about it tomorrow with the group. I will withhold judgment except to say that I'm skeptical," Portman told Fox News Digital Tuesday. "It's better to deal with it on the merits, I think."

"Attaching the legislation to a CR is not the senator's preferred path as she would like to see it taken up sooner," a spokesperson for Baldwin's office said. "The senator's goal is to pass the Respect for Marriage Act, and she will do whatever it takes to get there."

Senate Majority Leader Chuck Schumer, D-N.Y., promised a vote on gay marriage but has not committed to a timeline, emphasizing the importance of time-consuming appeals court confirmations. A continuing resolution would need to pass before the end of September.

Senate Majority Leader Chuck Schumer speaks with reporters following a caucus lunch at the Capitol, July 19, 2022. (AP Photo/J. Scott Applewhite)

Details of a possible amendment on religious protections are also still undecided.

This is a priority for some Republicans who are open to voting to codify gay marriage rights but also want to ensure the bill does not inadvertently harm Americans' First Amendment rights. It could also risk upsetting some Democrats if they think it goes too far,

Baldwin said senators expect to finish work on that in the next few days.

"There's been some great conversations about an amendment to address the many concerns of those who would like to get to yes," Baldwin told reporters. "People have been reviewing language. We'll be releasing that publicly later this week."

Supreme Court Justice Clarence Thomas's opinion in Dobbs v. Jackson Women's Health Organization, questioning the Supreme Court's precedent on gay marriage, Obergefell v. Hodges, spurred congressional action to protect same-sex marriage on a federal level. (Drew Angerer/Getty Images)

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A spokesperson for Baldwin's office also said she "will meet with her Republican colleagues this week to compare notes on their outreach efforts to build more support from Senate Republicans."

Congressional efforts to pass legislation protecting gay marriage rights followed a solo Supreme Court opinion by Justice Clarence Thomas in June in the case Dobbs v. Jackson Women's Health Organization, which he said the court should "reconsider" its precedent on the issue.

No other justices joined Thomas, but that opinion became a major campaign issue for Democrats and spurred lawmakers of both parties to craft legislation that would require states to recognize same-sex marriage even if that precedent eventually falls.

Tyler Olson covers politics for Fox News Digital. You can contact him at tyler.olson@fox.com and follow him on Twitter at @TylerOlson1791.

Excerpt from:
Senate gay marriage bill negotiators to meet on how to advance the legislation before midterms - Fox News

The Tennessee Registry of Election Finance is set to audit former Senate District 27 candidate Gary Humble to determine whether his campaign illegally coordinated with his nonprofit organization Tennessee Stands.

Registry board member Tom Lawless, a Nashville attorney, called for the investigation Wednesday based on his general knowledge of the situation.

Theres some smoke there, which usually means theres something underneath that causes it to rise. And I just want you all to dig into it, Lawless said.

Humble, a Williamson County resident and political activist, narrowly lost to Senate Majority Leader Jack Johnson of Franklin in the Aug. 4

Lawless also raised questions about Humbles group, Tennessee Stands, which has a 501(c)(4) federal tax status, and whether it is operating as a political action committee without registering with the state. Humble is executive director of the organization, which is intertwined with his political activity.

If it doesnt meet the pure definition of a PAC, if it is supporting or assisting through in-kind contributions or other contributions to the candidate, thats a problem, Lawless said.

Theres some smoke there, which usually means theres something underneath that causes it to rise. And I just want you all to dig into it.

Tom Lawless, Nashville attorney and member of the Tennessee Registry of Election Finance

But regardless of whether it is found to be a political action committee, because it operates with nonprofit status, Tennessee Stands would be required to register and file reports with the Registry of Election Finance under a new state law tracking activity of those organizations within two months of an election. Humbles also has another group with nonprofit status, which would be required to register if it engages in certain activity, according to the Registry.

Humble responded Wednesday by saying, They can audit away.

He said that Tennessee Stands spent only $500 on a Facebook ad, and that occurred before July 1.

Humble also asked rhetorically whether the Registry board plans to audit Johnsons campaign to see if illegal coordination happened with campaign coordinator Ward Bakers PAC and the Tennessee Conservatives PAC, which formed in May and sent negative mailers about Humble calling him a grifter and Democrat in disguise.

It had the same treasurer, Les Williamson, as PACs for Sens. Marsha Blackburn and Bill Hagerty and a PAC attacking Humble in Williamson County, according to Humble.

The Tennessee Star also reported in July that Humble had no conflict of interest with Tennessee Stands on his mailer. He said a Freedom Matters podcast incorporated into the mailer is simply an invitation to see where he stands on issues, even though the podcast site shows it is presented by Tennessee Stands.

The Registry board declined to take up a complaint against Humble filed by Williamson County voter Pete Pancione for making an illegal campaign expenditure, instead sending it to Williamson County District Attorney Kim Helper for investigation. Pancione made the complaint after receiving a Humble election mailer that didnt state who paid for the material, which is required by law.

Registry board member Hank Fincher noted Wednesday it is campaign finance 101 to provide the financial source of election materials.

Humble told the Tennessee Star the paid for disclaimer was left off the mailer unintentionally and that he reported it to the DAs Office.

Yet another complaint has been filed against Humble alleging he is acting as a lobbyist without filing with the state. Humble protested against legislation requiring groups with 501c status to file expenditure reports if their campaign spending hits $5,000 within 60 days of an election.

The legislation is designed to check the flow of so-called dark money into state campaigns. Humble and groups that opposed the legislation said it would only insert government more into the legislative process, putting a damper on their First Amendment rights.

They call it a transparency bill. I call it the incumbent protection act, Humble said.

The Registry board also has authority to subpoena records, including banking documents, but it wasnt prepared to take that step Wednesday, though members discussed it.

Read more:
Registry of Election Finance to audit Humble for potential illegal coordination with PAC-like group Tennessee Lookout - Tennessee Lookout

How is traditionalism similar to and different from originalism? And how does it relate to what some originalists call "liquidation"?

These questions are complicated by the capaciousness of originalism, which now encompasses many theories with diverse commitments. To narrow things down, we might compare originalism and traditionalism on the specific issue of the role (if any) of enduring practices.

Among originalists, there are disagreements about what evidence counts to ascertain the meaning of unclear text. Originalists who reject practices altogether are far from traditionalism. Those who accept practices as some evidence of original meaning are closer, though no originalist theory (so far as I know) takes enduring practices to be the primary determinants of meaning and law. None is the same as traditionalism.

As for endurance, one key difference concerns pre- and post-enactment practices. For traditionalists, such practices, their age, longevity, and density, will be centrally important, while for some originalists they will be irrelevant. Even for originalists who assign practices some role, the relative weighting will be different: practice-friendly originalists will assign more weight to practices at enactment than to pre- or post-enactment practices, while this is not so for traditionalists. Alternatively, when a self-identified originalist interpreter does weigh pre- and post-ratification practices heavily, that approach may drift toward traditionalism.

Some originalists consider a particular sort of practice-based evidence in what they call the "liquidation" of the original meaning of the text. Caleb Nelson describes a process by which judicial interpreters give unclear textual provisions one of several permissible constructions post-ratification, thereby "settling" meaning for subsequent interpreters. William Baude has elaborated the Madisonian concept of liquidation, in which three things are necessary to settle meaning: "indeterminacy, a course of deliberate practice, and settlement." For Madison, a "deliberate practice" had to be adequately deliberatedrationalizedand had also self-consciously to concern constitutional interpretation rather than mere "sheer political will." And as for liquidated "settlement," there is a sub-element of public sanction or ratification of the liquidated meaning.

In her Bruen concurrence, Justice Barrett observed that the Court should achieve greater clarity about what method it is using: "Scholars have proposed competing and potentially conflicting frameworks for this analysis, including liquidation, tradition, and precedent. The limits on the permissible use of history may vary between these frameworks (and between different articulations of each one)." Justice Barrett is right. Traditionalism is not liquidated originalism (in the paper, I use "liquidated originalism" to describe an originalism that integrates liquidation).

First, traditionalism includes pre-ratification practices. Liquidated originalism, insofar as it is liquidated, has nothing to say about those. (It may have something to say about them insofar as it is originalist, but it will do so for reasons that differ from traditionalism.) If the age, longevity, and density of pre-ratification practices that extend through the post-ratification period (the period where traditionalism and liquidation overlap) are relevant, as the Court has said they are, it is traditionalism that offers a complete account of why and how.

Second, liquidated originalism aims at the settlement of textual meaning, which generally occurs (when it occurs) in a constrained time frame. That is because to settle original meaning, the liquidation must be evidence of original meaning, which weakens as it is removed from the ratifying moment. In the case of the Necessary and Proper Clause, within 40 years of enactment. In the case of the Spending Power, within less than 10-15 years. Traditionalism's emphasis on historical longevity as probative of meaning is no real part of liquidated originalism. A related difference concerns liquidated originalism's subject, which is the text's semantic meaning, rather than the constitutional law relating to the text. Liquidated originalism concerns the former, not the latter, while traditionalism concerns both.

Some examples. The enduring post-ratification practices of regulating off-premises signs, the possession of handguns in contexts threatening an "affray," abortion, and so on, could be called part of the semantic meaning of the First Amendment, the Second Amendment, and the Due Process Clause, respectively. But it would be more accurate to call them determinants of the constitutional law of these clauses. That is, liquidated originalism's short time horizon and its aspiration to settle meaning befits its narrow subjectthe linguistic meaning of the text. Traditionalism's long time horizon and its focus on the age, longevity, and density of practices befits its broad subjectthe law of the Constitution (which includes, but is not exhausted by, the text's meaning).

Furthermore, certain parts of constitutional law may have little to do with the liquidation of the semantic meaning of the text, and more to do with enduring practices. Consider the "anti-commandeering" doctrine, which prohibits the federal government from compelling states to enact or enforce federal law. The law of anti-commandeering does not much depend upon the liquidation of the semantic meaning of constitutional text (the Tenth Amendment, for example). It is instead formed by legal decisions allowing or disallowing states to engage in a host of concrete practices based on a historical understanding of the relevant powers and immunities of the state and federal players. Or consider the doctrine of state sovereign immunity, which the Court said in Alden v. Maine is not fully determined by the semantic meaning of the Eleventh Amendment, but instead by the "history" of "custom and practice."

A third difference concerns the sources of the relevant settling practices. Liquidated originalists tend to look to the federal judiciary (or state high courts) and the federal legislature, with illustrious figures like James Madison, Alexander Hamilton, or John Marshall often taking the settling role. Theirs are centralized practices of elite actors operating at the apex of American political power. State and local governments, and the people in their communities, have a subordinate role in "sanctioning" these practices. But their own practices, distributed across geographic time and space, spread widely across social class and rank, are not relevant. Traditionalism includes the enduring practices of national actors, though even here, the focus might be on comparatively minor figures and events in our national history. But by contrast with liquidated originalism, it also values the traditions of non-national persons and entities.

Furthermore, traditionalism, unlike liquidated originalism, depends upon the concurrence of diffuse sources of practice. When the Court in Bruen details the concurrence of 19th century state and territorial firearms regulations, observing outliers and achieving a collective sense of the regulatory landscape, it is aggregating the diffuse practices of individuals and localities across the nation to understand the Second Amendment's scope. It is not focusing on who prevailed in a disagreement between Madison and Hamilton at one discrete moment in history so as to settle constitutional meaning thereafter.

Fourth, and finally, liquidation's emphasis on "deliberated," rationalized, and self-consciously constitutional interpretive practices is different from traditionalism. This rationalistic feature of liquidation in some ways follows from liquidation's preferred sourceselite legal actors on the national stagewhose liquidations must be re-ratified and re-rationalized by subsequent elite actors. Yet why, one might ask against the traditionalist, should a practice that cannot be justified on thoughtful, rational grounds continue to endure?

The traditionalist response is that "thoughtful" interpretation in constitutional law has sometimes meant interpretation that favors and entrenches the preferences of the educational and cultural elites in American society. When the Court speaks of traditions being "deeply rooted in the Nation's history," it is adopting a constitutional approach more suited to the non-elites of American society. The sagacity of a people's diffuse practices and ways of life across time and geographic space has its own merits and claims. These are not less rational than the claims of elites (here, Burke was a force more for ill than good). Indeed, one might adopt a liquidationist locution in arguing that they are a convincing public "sanction" or reasoned avowal of constitutional meaning and law.

Read more from the original source:
Traditionalism Rising, Part II: Comparing (Liquidated) Originalism and Traditionalism - Reason