Daily Archives: October 9, 2023

Summary

Floyd Abrams: Speaking Freely debuted on September 22nd and is currently available to stream on the PBS app. With a runtime of 1 hour and 23 minutes, the biopic centers around the career of lawyer and legal expert, Floyd Abrams, and how his contributions expounded upon the First Amendment. Speaking Freely highlights Abrams' most crucial and controversial cases, as well as the effect his work has had on recent political elections.

Co-founder of SALTY Features, Yael Melamede, serves as the director and producer of Floyd Abrams: Speaking Freely. She has won both the Academy and Emmy Awards and worked on several critically acclaimed projects. Melamede is most well-known for titles such as (Dis)Honesty: The Truth About Lies, Why We Hate, and 1341 Frames of Love and War.

RELATED: The 25 Highest-Grossing Biopics Of All Time, According To Box Office Mojo

Yael Melamede chats exclusively with Screen Rant about working with Floyd Abrams on his biopic, as well as the impact Citizens United and the Pentagon Papers had on protecting the First Amendment.

Screen Rant: Were you asked to come on board and create this biopic or was this an original idea that you wanted to pursue?

Yael Melamede: It was an original idea. I started talking to Floyd when I was doing a six-part series for Alex Gibney and for Amblin Entertainment around Why We Hate. I had finished a film a year before that on why we lie, basically a film about dishonesty. And so they thought I'd be a very helpful person for them on why we hate and got interested in hate speech, and why we permit hate speech, and why we're so liberal about hate speech. I just loved the way Floyd speaks about the importance of free speech, but at the same time, seems to empathize so much with the cost and with the sacrifice that we make.

Hate speech is very painful. He's not someone who says, "Oh, just don't take it so seriously." He understands that there's a real cost. I loved his empathy for the other side, and as things have become so much more polarized, and there have been calls from the left and the right to limit speech for different reasons, I thought he was a really interesting person to talk to to see his journey and understand through his eyes why he thinks free speech is so important, regardless of whether you're on the left or the right.

Speaking Freely was three years in the making. Was that expected or was there a delay due to COVID?

Yael Melamede: A lot of our films take a long time. They're complicated films. Speaking Freely is the second film I've directed, and the first one I directed on dishonesty was a long time coming. They're kind of thematic films. This is about Floyd, but it's also about our journey with free speech and it just took a long time. We started during COVID, and so that was certainly a part of it, but fundraising also took a long time. We were very fortunate to get a really big NEH Grant for the film and that was super helpful. Everything together just created for a long process, which I think was really good for the film. Not very good for our business, but very good for the film.

How was working with Floyd Abrams? Was he excited about the opportunity to talk about his lifes work?

Yael Melamede: He was amazing. He was incredibly gracious and generous. I think Floyd is somebody who landed in exactly the thing they should have been doing in life. It just seems so perfect for him. The way his mind works, the way he enjoys the law, the impact he's hadit was kind of this very virtuous cycle for him. I said to him, "If you hadn't done law, what could you have done?" In all seriousness, he said, "I think I would have been a really great kindergarten teacher." I think he just loves to explain. He loves to hear. He's very curious about other people's points of view.

He's really curious about kids' points of view. He has amazing patience. He was very trusting and generous from the very beginning. And I think part of it was because I've known him for a while, and because we've had such good conversations around hate speech. I think he thought that if he was going to share his story, he was going to do with somebody who seemed very open and really curious about him and wasn't coming to this with a predetermined notion. He was extraordinary.

Citizens United is Floyds most controversial case. Where do you think the controversy stems from and what impact do you think it's had on political elections?

Yael Melamede: It's such a complicated case. I think, for me, what was interesting, in terms of Floyd, was how he views the case. He was such a darling of the left up until that case, and that case together with other cases that he has taken that have to do with protecting corporate speech are not popular. I really hope that through the film, people, even if they continue to disagree with Floyd, which I think is totally valid, would see that there's a side, or at least a legitimacy to the other side, even if you disagree. I thought that was really important for people to admire and even respect somebody who is advancing an argument and even the law in a way that they really disagree with.

In terms of Citizens United's impactI think it's so complicated. Most people talk about Citizens United in terms of the power that it gave to corporations, but Floyd, I think, is very right in saying that corporations in the way we think of corporations like Apple or Microsoft or Mobile are not the entities that are putting hundreds of millions of dollars into politics. The truth is that very wealthy individuals are putting money into politics, and the way they're doing that is through corporate entities. So there is a difference between how people talk about the case and its impact and the reality. I think the reality is that people with a great deal of money can influence elections and that that is unfortunate.

Floyd's arguments to that reality would say, "Fix it, not by taking away speech, but by doing other things. Be more transparent about who's actually giving the money, because there are lots of ways today that people can hide their identity, and still give money to politics and to influencing things, and we don't know who they are." And secondly, he would say, "Tax people more. Get rid of the money. Don't get rid of the speech, get rid of the money." I think that's a great idea and solution. It's totally unfeasible in the current political system we are in, so those are hard solutions. I think transparency is a more possible solution.

It's interesting that a lot of the organizations who you would think would be in support of transparency actually aren't. And in some ways, I don't know if that's why they don't support it, but it would mean that their donors would be more known to people, and they don't want their donors to feel in any way anxious about giving money. I think part of what we hoped to do through the film was to show the complexity of a case like Citizens United to make people think twice about having just a one-sided knee-jerk reaction to Citizens United itself, but also to other cases that might seem so easy, so wrong, so terrible, and that might be more complex.

The film also touches on Judith Miller and the price she was willing to pay to keep her sources confidential. Why did you feel this case was crucial to include?

Yael Melamede: Floyd's reason for supporting Citizens United, and even corporations, comes from his long-standing belief that the press should be free. It's all as a result of looking out for the press. Adam Liptak says in the film that he's been the greatest press lawyer so far in American history. He, as part of a team, was very successful with the Pentagon Papers, but he's also spent much of his career trying to argue for the right of reporters to not reveal confidential sources, which has been a big legal issue. It's something very scary for a lot of journalists, especially journalists dealing with national security and with secrets. We chose in the film to talk about two journalists.

One, Nina Totenberg, around the Clarence Thomas confirmation, who had secret information that was published, and the second being Judith Miller, who, in fact, didn't publish anything secret, but the Special Counsel knew that she had information, so he subpoenaed her for it, which is really extraordinary. She didn't even write anything about it, but she was subpoenaed. She wouldn't reveal her sources, and at the time, was very disliked by the press, because she had been very pro the Iraq War. She had made a few mistakes on some of the articles that she had written in The New York Times, which most people believed was because she was just a mouthpiece for the Bush administration, which I don't think is true.

I think she really believed that those things were the truth. But on the one hand, we had Nina Totenberg who was beloved by the press and seen as being under siege and very defended by the liberal press. And then Judith Miller, who had come out of the Iraq War somewhat scathed as a result of her reporting, and now was being not defended by her colleagues, and instead, left out there unprotected, even though what she was fighting for was to the benefit of all journalists.

When you were doing testimonials, was there anyone whose experience surprised you or provided an unexpected angle?

Yael Melamede: There was a colleague of Floyd's who's not in the movie, but she had said at some point that what Floyd was doing was really cutting-edge law. You look at Floyd, who worked at this very respected New York law firm, and it's hard to think, "Oh, well, they're doing cutting-edge law." That made me think really differently. That sense of what they were doing at the time was revolutionary and so different. I really wanted people to understand that the First Amendment that we think of today is something pretty new, and it's because of Floyd Abrams and his generation that we are so protected in terms of free speech.

So that was really interesting to have that context of cutting-edge and revolutionary. That was a great frame for what we were doing. I loved Emerson Sykes from the ACLU in the way he talked about Citizens United. He's somebody who agrees with Floyd Abrams in so many ways about the importance of free speech but gets to it from a different perspective, which I loved. He comes out of a total belief in progressive politics and in the need to protect, largely, people who are protesting rather than entities like the press. So they come to it from different places but get to the same place.

I loved that he was quite humble at the end about Citizens United as well, saying that when he came to the ACLU, his predecessor said to him, "If you can figure it out, you'll do better than all of us." And he says in the film he's really disturbed by Citizens United, but he also doesn't have a great solution for it, and I kind of love that. That somebody who's so clearly aligned with progressive politics hasn't quite figured out how, as he says, to square that circle or square that hole. So I really liked that.

Floyd has worked on countless cases throughout his career. Were there any that you wish you couldve included?

Yael Melamede: Oh, totally. There are two that stand out. One is not so much a case, but Floyd did a lot of work outside of the US related to human rights, and I wish we had been able to talk more about the relationship between free speech and human rights and in the international landscape. It was just too hard to do when we were so anchored in actual cases in the Supreme Court and what was happening in the US. That was something I wished we could do. He had this crazy story about going to the jungle in Thailand to interview ex-Cambodian rulers about what had happened in Cambodia.

It was extraordinary being part of Human Rights Commission's and helping South Africa with their new constitution. Those kinds of things we would have loved to put in, but again, there just wasn't time. Another case that he was part of was an entertainer in Las Vegas who sued, I believe it was NBC, for libel. It was a case that Floyd was on for 10 years and at first lost and then won in the end. I just love that case. It was very dramatic, and it had echoes of where we are today with celebrities. One of the biggest celebrities at the time, and one of the biggest celebrities in the country, and certainly one of the biggest celebrities in Las Vegas, had such an influence on the way the first case was tried and basically was not guilty because he was so beloved in Las Vegas where the jury was from. Then, on appeal, he lost.

I love the way that Floyd talks about it. He says, "Even though they lost, most people in Las Vegas think that Wayne Newton still won." You may win sometimes, and yet the reality is different. There were all kinds of ways in which the cases become bigger than the law itself or the judgment, and he would say that about the Pentagon Papers. The Pentagon Papers was a big decision, but its influence has been even bigger than the Supreme Court decision. And Citizens United, I think, similarly, what the court decided was a certain decision, but it's been taken into a much larger context. And so with Wayne Newton, the reality is actually different from what the case actually was about.

I also wanted to ask about your upcoming projects. It looks like you have something in post-production.

Yael Melamede: There are two more films coming out in the next few months. One is a film that will be released in theaters called Pay or Die, which I did not direct, I produced, about the insulin crisis in America, which is a really harrowing tale about our healthcare system. That's a Paramount/MTV Films production with amazing directors. I'm very proud of that film. And then I'm doing another film that I am directing about my mother who is a very well-known architect in Israel. Weirdly, she's almost the same age as Floyd Abrams, and her claim to fame is the Supreme Court of Israel. So there's a crazy kind of legal connection between the films and that one will hopefully hit the festival circuit in 2024.

Known as the first First Amendment lawyer, see how his landmark casesfrom the Pentagon Papers to Citizens United to Clearview AIhelped define free speech as it is known today. Join Dan Abrams, Ari Melber, Nina Totenberg and more as they unpack the ways in which Abrams career has shaped major changes in law, public discourse and civic action since the 1960s.

Floyd Abrams: Speaking Freely is currently available to watch on pbs.org and the PBS app.

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Floyd Abrams: Speaking Freely Director On How Floyd's Work ... - Screen Rant

On Tuesday, Oct. 3, the Justice Department's Office of Community Oriented Policing Services (COPS) Office and the Reporters Committee for Freedom of the Press convened a meeting of law enforcement executives and members of the press, facilitated by the Police Executive Research Forum (PERF), to discuss recommendations for law enforcement interactions with journalists during protests and mass demonstrations. The discussion was prompted by a request from the Reporters Committee, which expressed the need for concrete, specific suggestions that would account for both the important role of the working press in a functioning democracy, as well as the challenge of policing large protests and demonstrations.

Associate Attorney General Vanita Gupta, who asked the COPS Office to convene the meeting, addressed the participants saying, Each of you in this room has a difficult job. Journalists are entrusted with uncovering truth, holding those in power accountable, and providing the public with the information they need to make informed decisions. Law enforcement officers are constantly balancing their mandate to preserve public safety and fight crime, with the imperative to work constantly and consistently to build trust and maintain positive relationships with the communities they serve. Associate Attorney General Gupta went on to say that [t]he recommendations that come from todays discussion, and the many conversations leading up to this event, will without a doubt accrue to everyones benefit.

Last year, the department issued recommendations for law enforcement related to First Amendment issues in the context of mass demonstrations, but yesterdays discussion focused specifically on best practices for law enforcement interactions with journalists.

The group discussed issues including safeguarding First Amendment rights, the identification of members of the news media during protest activity, the utility in a persistent point of contact for open communication between press and police during protest activity, the importance of developing relationships between the press and police in advance of demonstrations, the need for a playbook before a planned event, the challenges brought about by social media, and more. The result of the discussion will be a series of recommendations that will be widely disseminated by the Justice Department, law enforcement organizations, and the media.

In addition to the Associate Attorney General, attendees included COPS Office Director Hugh Clements, other Justice Department officials and COPS Office staff; representatives of the Reporters Committee; journalists, editors and senior managers from major broadcast and print outlets; and law enforcement executives from across the country.

Read more here:
Readout of the Justice Department's Meeting on Law Enforcement ... - Department of Justice

TOPEKA A conservative campaign-finance reform organization involved in a key federal court decision leading to creation of super PACs urged the Kansas Legislature to overhaul the states unconstitutional definition of political action committee and to end regulation of political advocacy groups raising or spending less than $5,000 annually.

Bradley Smith, representing the Institute for Free Speech in Washington, D.C., told the House and Senate elections committee that Kansas should allow unlimited donations to political parties and index to inflation all contribution limits in state law. He recommended Kansas remove disclosure requirements from modest donors and to generally error on the side of free-speech rights when shaping campaign laws or regulations.

The government should not and cannot constrain the right of the American people to discuss candidates and policies lightly, Smith said. Whether through deliberate choice or bureaucratic inertia, many provisions of federal and state campaign finance laws have drifted away from this basic purpose. While better than many states, Kansas is no exception.

Smith said a Kansas law requiring disclosure of donors giving $50 or more made people reluctant to take part in political campaigns and fed a cancel culture mentality resulting in harrassment of contributors.

The Institute for Free Speechs reform ideas was met with skepticism by some members of a Republican-led interim legislative committee that heard testimony Thursday and Friday from people enforcing, litigating and evaluating the states election standards. The institute declined to reveal to legislators a list of top donors, but one confirmed contributor was the Scaife Foundation. In 2020, the foundation gave more than $1 million to the Heritage Foundation, Hoover Institution and American Enterprise Institute.

Sen. Ethan Corson, a Johnson County Democrat, said he struggled with the institutes credibility because it was unclear what deep-pocket political forces were funding the organizations extreme right-wing ideas about elections. He offered a personal summary of Smiths recommendations.

Basically, donor limits are bad. Regulating PACs is bad. Regulating contributions to parties is bad. Disclosure is bad, Corson said. What youre presenting, in my book, is kind of the fringe of the fringe of the fringe of First Amendment principles. Its hard to give any credibility to anything youve said without knowing who is behind you and what is cutting the checks.

Smith, chairman of the Institute for Free Speech, said the institute didnt disclose its contributors because it was none of your business what amounts were given by organizations or individuals.

This is the difference between living in the right-wing, think-tank world and living in the real world, said Corson, who made reference to U.S. Supreme Court Justice Louis Brandeis line in a Harpers Weekly article that sunlight is said to be the best of disinfectants.

Smiths reply: Too much sunlight leads to sunburn.

Mark Skoglund, executive director of the state commission responsible for regulating campaign finance law, said the states campaign finance statutes were constitutional.

He said the bipartisan Kansas Governmental Ethics Commission was charged with focusing on disclosure and contribution limits, which were crucial aspects of a transparent electoral system.

Conservative and liberal Supreme Court justices repeatedly and overwhelmingly uphold these two pillars of campaign finance regulation as essential and constitutional, he said. Over and over again, the Supreme Court has held that even when First Amendment concerns are generated by a campaign finance law, the substantial benefits of disclosure outweigh any minimal impact it has.

Skoglund, who survied a 2022 effort by conservative lobbyists and legislators to force him out of the job, said claims campaign finance disclosure chilled political speech were misplaced. He said reform should be based on actual data rather than vague assertions reporting of donations deterred big and small donors.

Studies bear out that chilling is negligible or nonexistent, and more recent studies are starting to find the opposite view entirely that disclosure actually encourages participation, he said.

Skoglund asked the committee to increase staffing at the ethics commission, which operates with 8.5 staff with a budget of $800,000. He would welcome development of a new definition of PACs as long as it didnt undermine registrations in a way that released a flood of dark money into the state.

Joshua Ney, a Kansas attorney who has represented clients before the state ethics commission on campaign finance issues, said the 2024 Legislature should concentrate on identifying key principles of election law anchored in limited regulation of campaign speech. That analysis ought to be followed by formulation of clear standards of conduct and procedure grounded in the concept of ordered liberty, he said.

He said court fights were the likely consequence when the Legislature didnt write clear statutes. No amount of bureaucratic precedent through enforcement can fill gaps in law, he said.

I encourage this committee to engage in once-in-a-generation update to the manner in which Kansas regulates campaign activity and political speech, Ney said.

Ney said legislators should adopt a public policy statement providing that any ambiguity in campaign finance law would be interpreted in the least speech-restrictive manner. The state should clarify what PAC activities a legislator could take part in, he said. Determinations of what constituted a PAC should be refined so individuals or groups didnt get unintentionally swallowed by the campaign-finance bureaucracy, he said.

He said Kansas should adopt reasonable qualificiations for appointment of commissioners to the state ethics commission. The objective should be to prevent conflicts of interest without blocking service by people with experience in campaigns, public office or the political process.

The more clarity the Legislature provides, the less conflict there will be in administrative and judicial tribunals, Ney said.

Mark Johnson, an attorney and lecturer at the University of Kansas law school, said Kansas law related to individual contribution limits and disclosure requirements were constitutional because those provisions didnt violate First Amendment rights of an actual or potential contributor. He said, to his knowledge, no challenge to these state laws had surfaced in the past 40 years.

It is quite likely that no such challenge has been brought because those who favor elimination of the provisions, and who rely on First Amendment constitutional arguments in advocating their elimination, know they would lose, he said.

Heather Ferguson, director of state operations for the left-leaning nonpartisan Common Cause, said Kansas statutes on campaign finance should be considered woefully inadequate and weak in terms of compelling transparency.

The gold standard of a healthy democracy is to have a government that is responsive and reflective of the people that it serves and that it ensures that every eligible voter has an equal voice in our political process, Ferguson said. To meet this standard, voters need to know who is funding the campaigns of their elected officials and informing the public regarding ballot questions.

She said the heavy influence of corporate special interests and the money flowing into the election system was drowning out the voices of everyday Americans.

Original post:
Conservative think tank argues Kansas law defining PACs ... - Kansas Reflector

A recent spate of successful legal challenges has provided some relief from the ever-swelling wave of state privacy laws. The legal bases of these challenges vary, but taken together, they highlight that state privacy laws while growing in popularity across state legislatures may be on shaky legal ground. As explained in more detail below, the successful challenges to date include a challenge to the enforcement of the regulations promulgated under the California Privacy Rights Act (CPRA), as well as First Amendment challenges to childrens and teens privacy protections around content moderation and age verification requirements. Summaries of three of the recent successful cases follow.

California Chamber of Commerce v. California Privacy Protection Agency. In 2020, California voters approved the CPRA a ballot initiative that supplemented Californias omnibus privacy law, the California Consumer Privacy Act (CCPA). Among other things, the CPRA gave rulemaking authority to a new entity called the California Privacy Protection Agency (Agency). The Agency used that authority to promulgate new privacy rules in March 2023. The agency planned to begin enforcing the new rules which supplemented and added to existing California privacy rules in July 2023.

But on June 30, 2023, a California state superior court ruled that any CPRA regulation may not be enforced until one year after the regulation is promulgated significantly delaying the rollout of the new privacy rules. Focusing on the structure of the law, the court found that California voters intended to establish a 12-month gap between promulgation of CPRA regulations and enforcement. A more detailed analysis of the California state superior court ruling is available here. The case is currently pending on appeal and could heat up in the final months of 2023.

While this decision gave companies subject to the CPRA additional time to comply with the new regulations, it has not stopped the California Attorney General from sending several inquiry letters to large California employers requesting information about their compliance with the statute and existing CCPA regulations.

NetChoice v. Bonta.[1] In 2022, California enacted the California Age-Appropriate Design Code Act (the CA AADC), which imposes new requirements for businesses that provide an online service, product, or feature that is likely to be accessed by children. The CA AADC goes well beyond the requirements of the federal Children's Online Privacy Protection Act (COPPA) in both its scope and its substantive reach.

On September 18, 2023, a federal district judge in the Northern District of California preliminarily enjoined enforcement of the CA AADC after finding that much of the law likely violates the First Amendment. The court noted that almost every aspect of the CA AADC involves some type of speech regulation, such as its restrictions on collecting and using data, its requirement to prepare Data Protection Impact Assessments (DPIA), and its mandate for companies to create and implement content moderation policies. The court concluded that the challenged provisions of the statute violated the First Amendment because the State did not show relevant harm to children, did not advance the States interest in protecting children, and/or suppressed more speech than necessary to achieve CA AADCs goal of protecting children. Because these provisions were not severable, the court found that the entire law had to be enjoined.

NetChoice v. Griffin. In April 2023, the Arkansas governor signed the Social Media Safety Act (the Act) into law. The Act requires social media companies to verify the age of all account holders who reside in Arkansas by submitting age-verifying documentation through a third-party vendor before accessing a social media platform. Under the law, minors are denied an account and prohibited from accessing social media platforms without parental consent if they cannot provide a digital copy of their drivers license or any other commercially reasonable age verification method.

A few weeks before the Bonta decision in California, a federal district judge in the Western District of Arkansas granted a motion for preliminary injunction, finding that the Social Media Safety Act likely violates the First Amendment. The court found that the Act burdens both adults and minors access to constitutionally protected speech. Though the court declined to make a final decision on whether the law is content-neutral, the court applied intermediate scrutiny to the Act and found that the law is not narrowly tailored to achieve an important government interest. Specifically, the court agreed with NetChoice that the law would significantly deter many users from entering a website by requiring adults to provide personally identifiable information to access a website. The court also found that the Act bars minors from accessing large amounts of constitutionally protected speech online and emphasized that the governmental interest in protecting children does not allow a limitless suppression of constitutionally protected speech, even when the law addresses a serious social problem. The court concluded that the Act impedes access to content writ large.

Looking Ahead

States in 2023 have continued to aggressively push forward on new privacy laws. However, this recent spate of successful challenges to state privacy laws may provide a road map for future challenges to similar laws particularly with respect to state laws regulating minors access to social media.

Wileys deep and experienced bench of attorneys represent clients in privacy-related litigation and government investigations, and Wiley's attorneys regularly work with clients to comply with state privacy laws. Please contact any of the authors on this alert to discuss your privacy needs.

[1] Note: Wiley represented an amicus in this case.

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Cracks in the State Privacy Law Foundation: State Privacy Law ... - Wiley Rein

SCOTUS NEWS

After Monday's order list was released, the justices heard oral argument in the first case of the 2023-24 term. (William Hennessy)

The Supreme Court on Monday morning declined to take an appeal by anti-abortion activists in a First Amendment dispute with Planned Parenthood, as well as a test of New Jerseys slogan statutes. After adding 12 cases to their merits docket for the 2023-24 term on Friday, the justices on Monday denied review in nearly 900 cases that they considered at their conference last week. The justices also sought the Biden administrations views in three more cases. The full list of orders, which spans 46 pages, is one of the longest lists released each year.

The justices denied a group of petitions filed in a dispute between Planned Parenthood and an anti-abortion group that secretly recorded Planned Parenthood doctors and staff. The group then published its recordings, alleging that Planned Parenthood was trafficking in fetal tissue for profit. A jury awarded Planned Parenthood nearly $2.5 million, but the group contended that its conduct was protected by the First Amendment.

The justices also rejected a challenge to the constitutionality of New Jerseys slogan statutes laws that allow candidates in primary elections to list a short phrase next to their names on the ballot. The specific question at issue in Mazo v. Way was whether courts should subject such laws to the most rigorous constitutional test, known as strict scrutiny, or whether the laws should instead be reviewed using a less stringent balancing test.

The justices denied a petition for review filed by John Eastman, a former clerk to Justice Clarence Thomas, in a dispute over documents sought by the House of Representative committee investigating the Jan. 6 attacks on the U.S. Capitol. A federal district court ruled that emails sent by Eastman, who in August was indicted in Georgia along with former President Donald Trump and 17 others on charges that they conspired to overturn the results of the 2020 election, should be turned over under the crime-fraud exception to the protection for attorney-client communications. Eastman had sought to have that ruling thrown out after the emails were accidentally disclosed, but the lower court rejected that request, and the Supreme Court on Monday declined to weigh in.

Thomas recused himself from the consideration of Eastmans petition. The Supreme Court did not provide any reason for its denial of the petition, but Chapman University Eastmans employer, which turned over the emails waived its right to oppose the petition, and the justices did not seek a response, indicating that the decision to deny review was not a close call.

Other cases in which the justices denied review on Monday included:

The justices called for the federal governments views in three cases:

There is no deadline for U.S. Solicitor General Elizabeth Prelogar to file her briefs on behalf of the Biden administration.

The justices did not act on several notable petitions for review that they considered at last weeks conference. The justices will consider Tingley v. Ferguson, involving whether a Washington state law that prohibits licensed therapists from practicing conversion therapy on children violates the First Amendment, again at their private conference on Friday, as well as Stein v. People for the Ethical Treatment of Animals, in which North Carolina has asked the justices to decide whether a state law that allows employers to sue employees who make undercover video or audio recordings violates the First Amendment.

The justices denied review in one challenge to the constitutionality of New Yorks rent-stabilization system, which applies to about half of New York Citys apartments and (among other things) limits rent increases, but they will consider two other challenges again on Friday morning.

The justices also did not act on the case of Richard Glossip, an Oklahoma inmate who is seeking to set aside his conviction and death sentence. The justices put Glossips execution on hold in May to give them more time to consider his appeals. In an unusual twist, the states attorney general, Gentner Drummond, has supported one of Glossips petitions for review.

The court is expected to issue orders from its Oct. 6 conference on Tuesday, Oct. 10, at 9:30 a.m.

This article was originally published at Howe on the Court.

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Justices deny appeals from anti-abortion activists, Eastman, and ... - SCOTUSblog

On October 11, the Supreme Court will hear a challenge to racially gerrymandered congressional maps in South Carolina that could tell us a lot about where the Court stands on voting rights.

The lower court in this case, known as Alexander v. South Carolina State Conference of the NAACP, determined that the states Republican legislature excluded Black voters from the states First Congressional District in order to shore up Republican control of that district.

The stakes in any congressional gerrymandering case are high because these cases can potentially impact who will control the US House of Representatives in the future. And the Courts ultimate decision in Alexander may be unusually significant.

For years, the Supreme Courts Republican majority had been almost unrelentingly hostile toward voting rights plaintiffs, and especially toward the Voting Rights Act a federal law that bans race discrimination in elections. But in a surprising move last June, the Court struck down an Alabama gerrymander, affirming a lower court decision holding that the state violated the Voting Rights Act when it drew congressional maps that diluted Black voting power within that state.

Notably, the Courts 5-4 decision in that case, known as Allen v. Milligan (2023), was written by Chief Justice John Roberts, and it rested upon a provision of the Voting Rights Act that Roberts unsuccessfully pushed President Ronald Reagan to veto when he was a young political appointee in the Justice Department.

So Milligan is potentially the first sign that the Courts hostility toward voting rights plaintiffs is diminishing. Now, with Alexander, the first major voting rights case the Court has taken up since, we could see how committed to that pivot the justices actually are.

Technically, the legal issue in Alexander is distinct from the one in Milligan. Milligan held that Alabama violated the Voting Rights Act when it drew its congressional maps, while the lower court in Alexander held that South Carolina violated the Constitutions safeguards against race discrimination, which function quite differently in racial gerrymandering cases.

But this Court rarely troubles itself with legal formalisms when it decides voting rights cases. Its decision in Shelby County v. Holder (2013), for example, declared a key provision on the Voting Rights Act unconstitutional based on something called the fundamental principle of equal sovereignty among the States that cannot be found anywhere in the text of the Constitution. The Courts decision in Brnovich v. DNC (2021) simply made up a bunch of new limits on the Voting Rights Act, such as a presumption that voting restrictions that were commonplace in 1982 are valid, which also have no basis in any legal text.

This is why the Milligan decision, which hewed to a 37-year-old precedent governing vote dilution cases, was so surprising. The Court took an unexpected turn toward following existing law.

Thus, the biggest question in Alexander is whether Milligans turn toward the rule of law in voting rights cases is merely a fluke or whether it reflects a broader shift in the Courts posture toward democracy.

In 2018, former Rep. Joe Cunningham, a Democrat, won a narrow victory in South Carolinas First Congressional District, a district that had been held by Republicans for many years. Although he lost his seat to Republican Nancy Mace in 2020, Cunningham still received over 49 percent of the vote in that election a result which suggested that the First District would remain competitive unless it was altered.

And so the states Republican legislature decided to alter it. As the lower court opinion striking down this districts new configuration explained, when the South Carolina House and Senate began considering congressional reapportionment in 2021, the Republican majorities in both bodies sought to create a stronger Republican tilt in this district. And the newly drawn district does appear to be more solidly Republican. Mace won her most recent election, in 2022, with nearly 57 percent of the vote.

Yet, while the GOPs goal was to shore up Republican control of the First District, the lower court determined that it did so through an illegal racial gerrymander. Specifically, the lower court found that South Carolinas mapmakers chopped up Charleston County, including many white voters from that county in the First District, while excluding nearly 80 percent of Charlestons Black population.

Because South Carolinas voters are racially polarized in 2020, 90 percent of Black voters in South Carolina voted for President Joe Biden, according to CNN exit polls Republicans could use race to identify which voters are likely to prefer Democratic candidates. According to the lower court, they then excluded many Black voters from the First District in order to keep them from electing a Democrat in that district.

This violates the Supreme Courts decision in Cooper v. Harris (2017), which held that the sorting of voters on the grounds of their race remains suspect even if race is meant to function as a proxy for other (including political) characteristics.

South Carolina does spend some of its brief suggesting bold new limits on constitutional challenges to racial gerrymanders at one point, for example, it implies that courts should be forbidden from ruling that a map is unconstitutionally gerrymandered unless the plaintiffs can produce direct evidence such as a legislators admission that the map was designed to target voters of a particular race.

As a whole, however, the states brief focuses less on calls for a new legal regime, and mostly on calls for the Supreme Court to second-guess the lower courts factual determination that the state sorted voters into districts because of their race. The gerrymandered map, they claim, was race-neutral because voters were moved out of the First District based on their political composition and traditional criteria, not their racial composition.

This argument should not carry much, if any, weight in an appellate court. As the Supreme Court also held in Cooper, appeals courts including the highest Court typically should defer to a lower courts factual determinations. The lower courts findings of fact most notably, as to whether racial considerations predominated in drawing district lines are subject to review only for clear error.

So, if the Supreme Court is inclined to follow existing law in the Alexander case, it will affirm the lower courts decision to strike down the gerrymandered maps. Absent clear evidence that the lower court botched its factual determinations, those determinations may not be disturbed on appeal.

Significantly, no one questions that South Carolina Republicans gerrymandered the First District to prevent Democrats from winning it again. Indeed, South Carolina repeatedly admits in its brief to the justices that the Republican-controlled General Assemblys goal was to create a stronger Republican tilt in District 1.

Under the Courts First Amendment decisions, which protect against attempts to discriminate against voters because of their partisan affiliation, this admission should be fatal to South Carolinas case. But the Court has never ruled explicitly that those protections apply to gerrymanders. And then there is the Courts decision in Rucho v. Common Cause (2019), which held that federal courts typically are powerless to do anything about partisan gerrymandering. So the states admission that it drew a partisan gerrymander most likely will not kill South Carolinas hopes.

To be clear, cases like Cooper establish that federal courts may sometimes intervene when states draw racial gerrymanders, meaning that voters were sorted because of their race. But cases challenging partisan gerrymanders maps that sort voters based on whether they are Democrats or Republicans will typically be dismissed by federal courts thanks to Rucho.

In Alexander, the lower court determined that South Carolinas First District is both a racial gerrymander and a partisan gerrymander. And, under Cooper, federal courts should still strike down an illegal racial gerrymander even if the map wasnt motivated by outright white supremacy, but merely by a partisan desire to use race to determine which voters are Democrats and diminish the power of those voters.

Nevertheless, South Carolinas primary legal strategy in Alexander is simply to deny that race played any role in its map-drawing decisions, and to present the First District as the product of a purely partisan gerrymandering process.

Notably, however, the Supreme Court has never held not in Rucho or in any other case that partisan gerrymandering is constitutional. To the contrary, the Court has consistently held that the First Amendment protects against viewpoint discrimination, which occurs when the government discriminates based on someones political views.

Though the full Court has never struck down a partisan gerrymander for engaging in viewpoint discrimination, at least five justices have, at various times, endorsed the view that such gerrymanders violate the First Amendment. As Justice Elena Kagan wrote in her Rucho dissent, the First Amendment gives its greatest protection to political beliefs, speech, and association, but partisan gerrymanders subject certain voters to disfavored treatment again, counting their votes for less precisely because of their voting history [and] their expression of political views.

So, by admitting that it drew the First District to give an advantage to Republicans and a disadvantage to Democrats, South Carolina confessed in a brief to the Supreme Court that it violated the First Amendment.

Rather than holding that the First Amendment permits viewpoint discrimination in redistricting, Rucho held that federal courts should stay away from partisan gerrymandering cases because they are too hard. As the Court said in that case, the justices have struggled without success over the past several decades to discern judicially manageable standards for deciding partisan gerrymandering cases. That is, the majority in Rucho concluded that it is too difficult to come up with a unified theory of partisan gerrymandering that will allow judges to determine whether each map drawn by a state legislature violates the Constitution.

Whatever the wisdom of this decision in Rucho, however, it makes no sense to apply Rucho to cases where a state openly confesses, in a brief to a court of law, that they violated the First Amendment by drawing a partisan gerrymander for the same reason that it is not hard to figure out who robbed a bank after the bank robber shows up at the police station with a signed confession.

Is this Supreme Court likely to agree with this argument? No, it is not. Even before Rucho, states frequently defended themselves against racial gerrymandering suits by claiming that their gerrymandered maps were drawn for partisan and not racial reasons. And this Supreme Court has shown little interest in pushing back against this practice.

Though the Supreme Court is unlikely to order states to stop defending against racial gerrymandering allegations by confessing to partisan gerrymandering, that doesnt mean that South Carolina is likely to prevail in this case.

Again, under Cooper, it is already illegal for a state to use race as a proxy to identify Democratic voters. And the Supreme Court is supposed to defer to a trial courts factual determination that South Carolina did, in fact, use race as such a proxy in the Alexander case.

Prior to Milligan, voting rights advocates would still have very good reason to fear the outcome of the Alexander case. As cases like Shelby County and Brnovich suggest, this Supreme Court does not always concern itself with what the law actually says when it decides a voting rights case.

But, at the very least, Milligan reveals that at least five justices are still open to the argument that the Court should strike down racially gerrymandered maps if those maps violate existing law.

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The high stakes in a new Supreme Court showdown over ... - Vox.com

An Iowa man published body camera footage of his arrest at the hands of two Newton, Iowa, police officers last year. Now, he's being sued for defamation.

In August 2022, 19-year-old Tayvin Galanakis was driving in Newton just after midnight when he was pulled over by police officers Nathan Winters and Christopher Wing.

"How much have you had to drink tonight?" Winters asks Galanakis in body camera footage from the incident.

"None," Galanakis responds. Winters incredulously asks, "What do you mean none?" Galanakis said, "Great, let's do a test then."

The footage then shows Galanakis undergoing a series of field sobriety tests. After Winters claims Galanakis failed them, he administered a Breathalyzer test, which showed that Galanakis had a blood-alcohol level of 0.00. Almost immediately after proving his sobriety, body camera footage shows Winters asking Galanakis about how much marijuana he had consumed.

"Despite previously claiming he could smell alcohol on Tayvin, Officer Winters now claimed he believed Tayvin was intoxicated due to his use of marijuana," reads a legal complaint later filed by Galanakis. "Tayvin continuously told the officers that he did not use marijuana and that his placement on the William Penn [University] football team renders him unable to use marijuana because of his weekly drug tests."

"I've had no weed tonight," body camera footage shows Galanakis telling officers. "Why do you think it's tonight? I blew a zero, so now you're trying to say I smoked weed. That's what's going on. You can't do that, man. You really can't do that."

"Absolutely I can," one of the officers responded.

According to Galanakis' suit, the officers arrested Galanakis and took him to the Newton Police Station, where he agreed to undergo drug tests, which came back negative. Eventually, he was released.

Less than a week after his arrest, Galanakis published body camera footage from his arrest to YouTube, where it eventually gained over 2 million views. According to the Newton Daily News, viewers flooded the Newton Police Department with hundreds of calls expressing outrage over the arrest.

Galanakis filed a lawsuit against Winters and Wing in February 2023, alleging that the officers violated his Fourth Amendment rights, wrongfully arrested him, and caused "humiliation, degradation, public ridicule, loss of personal reputation, and emotional distress."

Soon after Winters and Wing filed a counterclaim against Galanakis, arguing that he had defamed them by publishing the footage and making derogatory comments about the officers on social media. In several posts, Galanakis made statements such as "basically I got kidnapped then raped by the NPD all night," "they didn't show the clip of Nathan sexually harassing me," and stated falselythat Winters had been convicted of domestic abuse.

In May, a federal judge dismissed most of Winters and Wing's defamation claims. "Galanakis made extensive video footage from his encounter with Winters available on YouTube and TikTok," wrote Judge Stephen H. Lochner. "Viewers therefore had the opportunity to see for themselves what Winters said and did. With this context in mind, it would be even harder for a listener to interpret Galanakis's statements as anything other than his opinion or 'rhetorical hyperbole' about what happened during the encounter."

However, Lochner also ruled that several of Galanakis' statementsnamely, his claims that Winters was convicted of domestic abuse or had abused an ex-girlfriendwere possibly defamatory, and thus the defamation suit could move forward in part.

This isn't the first time Newton police have lashed out against a disgruntled citizen. Last year, they arrested Noah Petersen, then 22, and charged him with disorderly conduct after he claimed during a City Council meeting regarding Galanakis' arrest that the police department was employing a "domestic abuser," in reference to Winters.

Petersen was found not guilty, and the city ordinance allowing his arrest was overturned for violating the First Amendment.

"What's the First Amendment for if not criticizing the government?" Petersen told the local TV station KCCI last October. "I think government can handle three minutes of criticism."

The post An Iowa Man Published Body Camera Footage From His Arrest. The Cops Are Suing Him for Defamation. appeared first on Reason.com.

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An Iowa Man Published Body Camera Footage From His Arrest. The Cops Are Suing Him for Defamation. - Yahoo News