Daily Archives: January 27, 2024

A renegade federal appeals court one dominated by MAGA-aligned judges who routinely read the law in ways that even the current, very conservative Supreme Court finds untenable has spent the last half-decade harassing DeRay Mckesson, a prominent civil rights activist and an organizer within the Black Lives Matter movement

As part of this crusade, two of the Fifth Circuits judges effectively eliminated the First Amendment right to organize a protest in a case known as Doe v. Mckesson.

Mckessons case has already been up to the Supreme Court once, and the justices strongly hinted in a 2020 opinion that the Fifth Circuits attacks on Mckessons First Amendment rights should end labeling this case fraught with implications for First Amendment rights. But the Fifth Circuit did not take the hint, issuing a new opinion last July reaffirming its attack on First Amendment-protected political protests.

Now the case is before the Supreme Court again, and Mckessons lawyers want the justices to restore the First Amendment as fast as they possibly can.

In 2016, Mckesson helped organize a protest near Baton Rouges police department building, following the fatal police shooting of Alton Sterling in that same Louisiana city. At some point during that protest, an unknown individual threw a rock or some other hard object at a police officer, identified in court documents by the pseudonym Officer John Doe.

Sadly, the object hit Doe and allegedly caused injuries to his teeth, jaw, brain, and head, along with other compensable losses.

There is no excuse for throwing a rock at another human being, and whoever did so should be held responsible for their illegal act, including serious criminal charges. But even Judge Jennifer Elrod, the author of the Fifth Circuits most recent opinion targeting Mckesson, admits that it is clear that Mckesson did not throw the heavy object that injured Doe.

Nevertheless, Doe sued Mckesson, claiming that, as the organizer of the protest where this injury occurred, Mckesson should be liable for the illegal action of an unidentified protest attendee. But that is simply not how the First Amendment works. The Supreme Court held in NAACP v. Claiborne Hardware (1982) that civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence.

It should be obvious why protest leaders must not be held legally responsible for the actions of random protest attendees. No one will ever organize a political protest if they know that they could face financially devastating liability if a reckless or violent individual happens to show up.

Indeed, as Judge Don Willett, a Fifth Circuit judge who dissented from Elrods opinion, pointed out, Elrods approach could potentially force protest organizers to pay for the unlawful acts of counter-protesters and agitators who show up for the very purpose of undermining the protest organizers political goals. Under Elrods opinion, Mckesson could be held liable if the unknown rock-thrower turns out to be a member of the Ku Klux Klan who showed up for the very purpose of undermining the Black Lives Matter movement by associating them with violence.

In their petition to the Supreme Court, Mckessons attorneys make an audacious ask claiming that Elrods decision is so flatly contrary to this Courts controlling precedent to be appropriate for summary reversal.

A summary reversal is the judicial equivalent of a spanking. It means that the lower courts decision was so erroneous that the justices decided to skip a full briefing or an oral argument in a case, and issue a permanent order overturning that lower courts decision.

This process is rarely used, and it is distinct from the temporary orders the Court frequently hands down on its so-called shadow docket. The Supreme Court typically requires six justices to agree before summarily reversing another courts decision.

Nevertheless, such a spanking is warranted in this case. Elrods opinion flouts exceedingly well-established First Amendment law. And it does so in a way that would make organized mass protests impossible, because anyone who tried to organize one would risk bankruptcy.

To understand just how ridiculous Elrods decision is, and how egregiously she defies the Supreme Courts caselaw, its helpful to start with the facts of the Claiborne case.

Like Mckesson, Claiborne involved a civil rights activist who organized a protest that allegedly included some violent individuals. In 1966, Charles Evers was the field secretary of the Mississippi chapter of the NAACP. In that role, he was the principal organizer of a boycott against white merchants in Claiborne County.

The Mississippi Supreme Court claimed that some of the individuals who joined this boycott also engaged in acts of physical force and violence against the persons and property of certain customers and prospective customers of these white businesses. Evers, meanwhile, allegedly did far more to encourage violence than DeRay Mckesson is accused of in his case. He allegedly gave a speech to potential customers at these stores, where he said that if we catch any of you going in any of them racist stores, were gonna break your damn neck.

The Supreme Court nonetheless held that this emotionally charged rhetoric ... did not transcend the bounds of protected speech. Claiborne also warned that courts must show extreme care before imposing liability on a political figure of any kind.

That said, the Courts decision also listed three limited circumstances when a protest leader may be held liable for the violent actions of a protest participant:

There are three separate theories that might justify holding Evers liable for the unlawful conduct of others. First, a finding that he authorized, directed, or ratified specific tortious activity would justify holding him responsible for the consequences of that activity. Second, a finding that his public speeches were likely to incite lawless action could justify holding him liable for unlawful conduct that in fact followed within a reasonable period. Third, the speeches might be taken as evidence that Evers gave other specific instructions to carry out violent acts or threats.

None of these circumstances are present Mckesson. To the contrary, the Fifth Circuit admitted in an earlier decision in this very case that Officer Doe has not pled facts that would allow a jury to conclude that Mckesson colluded with the unknown assailant to attack Officer Doe, knew of the attack and ratified it, or agreed with other named persons that attacking the police was one of the goals of the demonstration.

So how on earth did Elrod arrive at the conclusion that Mckesson could be held liable for the actions of an unknown protest attendee? For starters, she claimed that her court could just add new items to the list of three circumstances that could justify such liability in her Mckesson opinion. According to Elrod, nothing in Claiborne suggests that the three theories identified above are the only proper bases for imposing tort liability on a protest leader.

This is, to put it mildly, a very unusual way to read a Supreme Court opinion that held that threats to break someones neck can be First Amendment-protected speech, which calls for extreme care before targeting protest organizers, and which laid out only three very specific circumstances that might justify an exception. Elrod cites no other court decision that has ever read Claiborne in such a counterintuitive way.

Then, after giving herself the power to invent new exceptions to the First Amendment, Elrod writes that this amendment does not apply where a defendant creates unreasonably dangerous conditions, and where his creation of those conditions causes a plaintiff to sustain injuries.

And what are the dangerous conditions created by Mckesson? Mckesson organized the protest to begin in front of the police station, obstructing access to the building. He did not dissuade protesters who allegedly stole water bottles from a grocery store. And he led the assembled protest onto a public highway, in violation of Louisiana criminal law.

Seriously, she said that the First Amendment begins to fade the minute a protest occupies a street.

Its hard to imagine a more lawless, unpersuasive, and historically ignorant decision than the one Elrod put her name on in the Mckesson case. And if the Supreme Court cant find the votes to reverse that decision, the right to engage in mass protest will become meaningless.

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Here is the original post:
A new Supreme Court case threatens to take away your right to protest - Vox.com

On Saturday, Ronald Reagan Washington National Airport (DCA) posted a warning on X, formerly known as Twitter. "TRAFFIC ALERT," it read. "Expect delays around the airport due to a group in vehicles exercising first amendment rights in roadway. Use caution and expect slow moving vehicles."

The post was a reference to a caravan, with several vehicles flying Palestinian flags, that claimed every lane as they inched along the roadway to the airport, reportedly causing hefty traffic delays.

It is certainly a driver's free speech prerogative to fly their flag of choice. That has nothing to do, however, with obstructing traffic, which is entirely irrelevant to the First Amendment.

One legally confused post from an airport in Virginia doesn't necessarily say much when viewed in a vacuum. But the assertion is indicative of a larger trend, as highway blockades continue to pick up steam across the country. In January, pro-Palestine activists cut off access to the Brooklyn, Manhattan, and Williamsburg Bridges, along with the Holland Tunnel, during rush hour. We've seen similar demonstrations in Seattle, Boston, Chicago, San Francisco, and Philadelphia. That list is not exhaustive. And DCA is not the first airport targeted by protesters: In late December, for example, demonstrators obstructed traffic outside Kennedy International Airport and Los Angeles International Airport during one of the busiest travel weeks of the year.

A settlement in New York essentially seeks to sanction the practice. "Where an FAA [First Amendment Activity] temporarily blocks vehicular or pedestrian traffic or otherwise obstructs public streets or sidewalks, the NYPD [New York Police Department] shall whenever possible accommodate the demonstration," reads a proposed agreement between the American Civil Liberties Union (ACLU) of New York, the Legal Aid Society, New York Attorney General Letitia James, and the NYPD in response to lawsuits pertaining to the police's handling of various protests in 2020.

The settlement is still up in the air; the police union is trying to fight it. But there is something richly ironic about the state's top law enforcement officer attempting to give the public a green light to break the law. And the ACLU, also involved in the settlement, acknowledges in its own guidance that detaining people by blocking a roadway is not a legal, First Amendmentprotected activity.

"The right to peacefully assemble and protest is sacrosanct and foundational to our democracy," said New York Attorney General James in September after the settlement was unveiled. "Too often peaceful protesters have been met with force that has harmed innocent New Yorkers simply trying to exercise their rights."

James is correct that freedom of expression is crucial and central to the American project. It's also not a force field by which people are shielded from other rules. If I want to get people's attention by, say, driving 120 miles an hour while sporting a Palestinian flag, I cannot tell the officer who pulls me over for reckless driving that I'm simply exercising my free speech rights. The First Amendment does not give carte blanche to violate the law.

Activists may invoke the father of the civil rights movement, Martin Luther King Jr., when defending blockades. That's understandable. It's also misguided. As I wrote in 2022:

Though King did lead a protest from Selma to Montgomery, famously filling the Edmund Pettus Bridge, it was a march. It did not block interstate and highway traffic indefinitely for the sake of ita tactic King was not comfortable with, despite pressure in the 1960s to get on board. "Even though King didn't come out and criticize it in public, in private he thought it was a misguided tactic," said Brandon Terry, assistant professor of African and African American Studies and Social Studies at Harvard University. "The NAACP thought it was ridiculous." King reportedly posited that such a move pushed the boundaries of acceptable demonstrations and would come back to bite the movement politically.

Protesting isn't meant to be convenient. But you might find it difficult to convince people you're the good guy when your blockades are hurting the vulnerable people you often claim to stand for, like this man who may have lost his parole, or this woman who went into labor.

Some folks may disagree. That is indisputably their right, and I'm thankful for that. Also not in dispute: It is not their right to detain people, no matter how righteous they believe their cause to be.

Link:
No, Blocking Traffic Is Not Protected by the First Amendment - Reason

Neither the FCC nor FTC has a particularly good track record of standing up to broadband and cable giants when it comes to their longstanding track record ofanticompetitive behavior, price gouging, or nickel-and-diming their often captive customers with bogus,hidden fees.

Though occasionally one of the two agencies does step in to try make a bare minimum effort to rein in the industrys worst impulses, such as the FTCs attempt,unveiled last March, to force companies to stop making cancelling service a pain in the ass. As you probably already know, many companies require you jump through elaborate hoops if you want to cancel, upselling you the entire time.

The FTCsproposed provisionwould make it just as easy to cancel a service as it is to sign up, requiring companies provide easy, one click access to cancelling service online. Said FTC boss Lina Khan at the time:

The proposal would save consumers time and money, and businesses that continued to use subscription tricks and traps would be subject to stiff penalties.

But the cable and broadband industry, which has a long and proud tradition of whining about every last consumer protection requirement (no matter how basic), is kicking back at the requirement. At ahearinglast week, former FCC boss-turned-top-cable-lobbying Mike Powell suggested such a rule wouldnt be fair, because it might somehow (?)prevent cable companies from informing customers about better deals:

The proposed simple click-to-cancel mechanism may not be so simple when such practices are involved. A consumer may easily misunderstand the consequences of canceling and it may be imperative that they learn about better options, NCTA CEO Michael Powell said at the hearing. For example, a customer may face difficulty and unintended consequences if they want to cancel only one service in the package, as canceling part of a discounted bundle may increase the price for remaining services.

Not to be outdone, Powell took things one step further and attempted ye olde throw every argument possible at a wall and see what sticks legal approach, at one point even trying to claim the FTCs requirements would harm the cable industrys first amendment rights (which makes no coherent sense):

the FTC proposal prevents almost any communication without first obtaining a consumers unambiguous, affirmative consent. That could disrupt the continuity of important services, choke off helpful information and forgo potential savings. It certainly raises First Amendment issues.

The cable and broadband industry makes its bundle pricing as complicated and punitive as possible, not only making it hard to simply outright cancel service, but often making it impossible to actually know how much youll pay for service in the first place. The goal isnt just to rip you off; its to making pricing so convoluted that its hard to do price comparisons or understand how much youre even paying.

Comcast and friends are alreadyfighting a separate initiative by the FCCrequiring they be up front and transparent about the specifics of your broadband line and how much it costs.

Again, this isnt even regulators trying advanced policies like trying to regulate rates or encourage competition. These are just very basic initiatives trying to force lumbering telecom and cable giants to make pricing transparent and transactions easy. And even these efforts result in years of legal wrangling, assuming they can survive a rightward lurching, corporate-friendly court system in the first place.

And this all comes before the looming Supreme Court rulings designed to make U.S. regulatorsmore impotent than ever. Defanging and defunding U.S. regulators always comes under the pretense that this will somehow result in unbridled innovation, when, as the cable and broadband industry routinely demonstrates, that simply couldnt be any further from the truth.

Cable Giants Insist That Forcing Them To Make Cancellations Easier Violates Their First Amendment Rights

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See original here:
Cable Giants Insist That Forcing Them To Make Cancellations Easier Violates Their First Amendment Rights - Above the Law

Public Institutions

It depends. As with private universities, your public college or university can discipline you for your speech if it determines that the speech violates the university's student conduct rules, or other established rules and guidelines. However, that investigation and determination must adhere,first and foremost, to First Amendment protections (outlined in the general First Amendment section above), as well as to the rules outlined in the universitys student code of conduct so, knowledge of your college or universitys code of conduct and/or policies is essential.

Before a public institution disciplines a student or student group, such as by expelling the student or revoking official recognition from a group on campus, it must provide the student or student group with due process. This includes providing students with the names of witnesses against them, an opportunity to present a defense, and the results and findings of the hearing. Unless otherwise stated in their own rules, public institutions are not required to provide legal representation for students, allow them to bring a legal representative, allow students or student groups to cross-examine witnesses, or record the hearing.

Read the original:
Know Your Rights: Students in Higher Education & the First Amendment - New York Civil Liberties Union

Home > SPJ News > SPJ co-authors legal brief supporting First Amendment right to record and publish livestreamed court hearings

SPJ co-authors legal brief supporting First Amendment right to record and publish livestreamed court hearings

CONTACT: Ashanti Blaize-Hopkins, SPJ National President, ashanti.blaize@gmail.com Andrew Geronimo, Case Western Reserve University School of Law First Amendment Clinic, andrew.geronimo@case.edu Kim Tsuyuki, SPJ Communications Specialist, ktsuyuki@hq.spj.org

INDIANAPOLIS The Society of Professional Journalists is urging a federal appeals court to protect journalists First Amendment right to photograph, record, and redistribute images of court hearings that are livestreamed for remote viewing.

In a legal brief joined by the National Press Photographers Association, SPJ asks the Sixth Circuit U.S. Court of Appeals to reverse a federal district court ruling from Michigan, which found that there is no constitutionally protected right to create and publish screenshots of court proceedings even if the courts themselves televise the proceedings.

Although judges have been given latitude to exclude photojournalists from the physical courtroom on the grounds that cameras might be noisy or distracting, the same principle does not apply when a journalist, or other spectator, is recording the hearing in the privacy of a home or workplace, the brief argues: By self-publishing the audio or video of a proceeding, the judge has conceded that there is no harm in letting the public listen and watch.

The brief was filed Jan. 8 by attorneys Andrew Geronimo, Sara E. Coulter and Siobhan Gerber of the Milton and Charlotte Kramer First Amendment Law Clinic at Case Western Reserve University School of Law, who are providing pro-bono counsel to SPJ and NPPA.

The brief was filed in support of a Michigan lawyer, Nicholas Somberg, who is suing prosecutors for seeking sanctions against him after he took a screenshot of a hearing in which he was participating by Zoom and shared the image on Facebook. Prosecutors had initiated contempt proceedings against Somberg under a court rule that restricts the use of cameras inside the courtroom without the judges permission. A U.S. district judge threw out Sombergs lawsuit, agreeing with prosecutors that the rule against cameras inside courtrooms applies equally to a livestreamed remote hearing. Somberg is asking the Sixth Circuit to reinstate his case.

SPJ and NPPA ask the appeals court to overturn the district court, which failed to require the government to demonstrate why it is legitimate to extend the courtroom cameras ban beyond the walls of the courthouse. The organizations argue that the ban is unconstitutionally broad, prohibiting the re-use of any images of courtroom video, even in cases of great public concern that involve no sensitive privacy issues.

News media coverage of the courts serves an essential public-education function, enabling far more people than could ever sit in the courtroom to have the civic benefit of viewing the workings of the justice system for themselves, the brief argues. Video of judicial proceedings, whether broadcast by the news media or streamed directly by the court, provides the most complete record of what took place, rather than leaving the public to rely on second-hand accounts, the accuracy of which might be questioned.

The case is Somberg v. McDonald, No. 23-01872.

SPJ promotes the free flow of information vital to informing citizens; works to inspire and educate the next generation of journalists; and fights to protect First Amendment guarantees of freedom of speech and press. Support excellent journalism and fight for your right to know. Become a member, give to the Legal Defense Fund or give to the SPJ Foundation.

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SPJ co-authors legal brief supporting First Amendment right to record and publish livestreamed court hearings - Society of Professional Journalists