Category Archives: First Amendment

Questions Neals belief in First Amendment

I was shocked to learn that Richard Neal and many other congressmen think we should take away the First Amendment rights of people who express their support of a boycott of Israel.

I am Jewish, and committed to Israels long-term survival. I think the thuggish actions and racist comments of Benjamin Netanyahus far-right Israeli government represent a long-term threat to that survival. Along with the constant theft of Palestinian land (land the whole world, including Israel, recognizes as Palestinian), these actions arouse deep-seated hatred which can only lead to destructive war. At the end, it will likely lead to the destruction of Israel.

So I think anyone in this country who backs the extremist Netanyahu is really backing the long-term destruction of the Jewish state, and certainly the destruction of Israeli democracy.

But if anyone came up with a law to deprive Netanyahu-backers of the right to express their views, I would oppose it to my last breath. Does Congressman Neal believe in the First Amendment, which guarantees free speech? He should be ashamed of himself.

David Ball

Northampton

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David Ball: Questions Neal's belief in First Amendment - GazetteNET

A judge on Thursday declared as unconstitutional a local Wisconsin ordinance mandating that the makers of augmented reality games get special use permits if their mobile apps were to be played in county parks. The lawthe nation's first of its kindwas challenged on First Amendment grounds amid concerns it amounted to a prior restraint of a game maker's speech. What's more, the law was seemingly impossible to comply with.

The federal lawsuit was brought by a Southern California company named Candy Lab. The maker of Texas Rope 'Eman augmented reality game with features like Pokemon Gosued Milwaukee County after it adopted an AR ordinance in February in the wake of the Pokemon Go craze. Because some of its parks were overrun by a deluge of players, the county began requiring AR makers to get a permit before their apps could be used in county parks.

The permitting process also demanded that developers perform the impossible: estimate crowd size, event dates, and the times when mobile gamers would be playing inside county parks. The permits, which cost as much as $1,000, also required that developers describe plans for garbage collection, bathroom use, on-site security, and medical services. Without meeting those requirements, augmented reality publishers would be in violation of the ordinance if they published games that included playtime in Milwaukee County parks.

US District Judge J.P. Stadtmueller issued a preliminary injunction Thursday blocking Milwaukee County from enforcing the law until the outcome of a trial tentatively set for April. "Greater injury will be inflicted upon plaintiff by the denial of injunctive relief than will be inflicted upon defendants by the granting of such relief," the judge ruled. (PDF)

The county did not immediately respond for comment.

In court papers, the county said (PDF) that augmented reality games like Texas Rope 'Em"werenot protected by the First Amendment:

Texas Rope 'Em is not entitled to First Amendment protection because it does not convey any messages or ideas. Unlike books, movies, music, plays and video gamesmediums of expression that typically enjoy First Amendment protectionTexas Rope 'Em has no plot, no storylines, no characters, and no dialogue. All it conveys is a random display of cards and a map. Absent the communicative features that invoke the First Amendment, Candy Lab has no First Amendment claim.

In Texas Rope 'Em, the county added, "The player simply views randomly generated cards and travels to locations to get more. That is not the type of speech that demands First Amendment safeguards."

Brian Wassom, Candy Lab's lawyer, said the judge's decision undercuts the county's argument.

"I think it's a huge win for the medium of augmented reality as a whole," he said in a telephone interview. "It's a strong affirmation that AR is a medium for creative expression."

Niantic, the developer of Pokemon Go, told Ars in a recent interview that it was working with Milwaukee County and other jurisdictions to alter game locations and to accommodate park hours.

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Augmented reality wins big in 1st Amendment legal flap | Ars Technica - Ars Technica

Gene Policinski

Attention you so-called enemies of the people and alleged purveyors of biased reporting: Theres reason to think fewer people than last year might see you that way, despite the ongoing, politicized attacks from multiple quarters on the news medias credibility.

President Donald Trump hurled that enemies epithet at journalists some time ago, and continues to complain about biased news coverage nearly every time there are news accounts regarding contacts with Russian officials by his administration.

But such criticism comes with varying levels of vitriol from a variety of quarters, and started long before Trump took office. Often, the harshest criticism of the media comes just as much from those who consume news as from those who make it.

This year, however, there are signs that the publics disdain for the media has somewhat abated. The 2017 State of the First Amendment survey, released over the July 4 holiday by the First Amendment Center of the Newseum Institute in partnership with the Fors Marsh Group, found that:

A solid majority of the public about 68 percent still believes in the importance of news media as a watchdog on democracy. Less than half (43.2 percent) said they believe the news media tries to report the news without bias; but this figure is a marked improvement from 2015 (23 percent) and 2016 (24 percent). There are some likely reasons for this shift: A significant amount of TV, online and print journalism has shifted from the softer horse race focus of the 2016 election to this years focus on hard news and complex issues. And with more than a bit of irony as more Americans are inclined only to consume news from sources that line up with their individual perspectives, theres a likely parallel increase in the trust factor in those sources, even if they resemble echo chambers more than truth-tellers. Among those who believe that media tries to report unbiased information, most expressed a preference for news information that aligns with their own views (60.7 percent). Those more critical of media efforts to report news without bias were also less prone to report a preference for news aligned with their own views (49.1 percent).

So, no celebratory back flips in the nations newsrooms, please, especially since the uptick only puts the bias figure roughly back to levels seen in 2013 and 2014 (46 percent and 41 percent, respectively).

Those inclined to support the work of todays journalists hope that the drop in those who perceive media bias generally stems from that combination of dramatically increased visibility of news operations and their reporting on serious news, such as health care reform and investigations of Russian influence in the 2016 election. For my own part, I believe more people saw reporting of real news, not fluffy click-bait features and dramatic but mostly meaningless polling reports, and it earned back some of their lost approval and trust.

Heres an idea for journalists nationwide: Keep trying hard news, accountability reporting on issues that while not necessarily sexy matter the most to people and their communities, such as jobs, health care, education, and local and state government.

For years, news industry moguls and newsroom leaders have sought ways to reverse their dwindling income, which has led to fewer newsrooms resources and less real journalism, and which in turn has prompted additional loss of consumers. Clearly, mushy stories about the travails of celebrities, feel-good stories, and valuing tweets over investigative reporting are not working out that well.

Acting on this realization will mean putting an emphasis on innovation and finding new ways to report on subjects that, in themselves, dont necessarily draw in a new generation of readers. But therein is the opportunity for those who will be the news media success stories of the 21st century. This years survey results show that the opportunity is there, that news consumers are hungry for imaginative reporting on issues that directly impact their lives.

But we can still take comfort in the 20 percent drop in those who presume journalists are incapable of reporting without bias: Attitudes can change, and trust can be regained. Read the full report.

Editors Note: A version of this column appeared earlier on the Newseum Institute website as part of the 2017 State of the First Amendment report.

Gene Policinski is chief operating officer of the Newseum Institute. He can be reached at gpolicinski@newseum.org, or follow him on Twitter at @genefac.

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First Amendment: More Americans see less media bias but why? - hays Post

Earlier this week, the ACLU sent a letter to members of Congress opposing the Israel Anti-Boycott Act. The bill would amend existing law to prohibit people in the United States from supporting boycotts targeting Israel making it a felony to choose not to engage in commerce with companies doing business in Israel and its settlements in the occupied Palestinian territories. Violations would be punishable by a minimum civil penalty of $250,000 and a maximum criminal penalty of $1 million and 20 years in prison.

The bill is aimed at advocates of boycotts targeting Israel, most notably the Boycott, Divestment, Sanctions (BDS) movement a global campaign that seeks to apply economic and political pressure on Israel to comply with international law. Specifically, the bill sponsors intend the act as a response to the U.N. Human Rights Councils 2016 resolution calling on companies to respect human rights, including in occupied Palestinian territories.

No matter what you think about the Israeli-Palestinian conflict, one thing is clear: The First Amendment protects the right to engage in political boycotts.

In fact, the right to boycott is one of the brightest stars in our constitutional firmament. The American Revolution was founded on boycotts against British goods to protest excessive taxes. John Jay led a boycott against New York merchants who engaged in the slave trade. And the Montgomery bus boycott of 19551956 was a major turning point in the struggle for civil rights in the Jim Crow South. In the 1970s and 1980s, colleges and universities led a widespread campaign to boycott and divest from South Africa, in protest of apartheid. In 2015, football players at the University of Missouri went on strike until the school addressed acute racial tensions on campus. And North Carolinas law prohibiting transgender people from accessing restrooms and other facilities consistent with their gender identities sparked massive boycotts by businesses and individuals.

Boycotts are a form of collective action that allows ordinary people to make their voices heard. For precisely this reason, the Supreme Court has held that the First Amendment protects the right to boycott. The courts landmark decision in NAACP v Claiborne Hardware Co. affirmed the constitutional right of NAACP activists to hold a mass economic boycott of white-owned businesses in Port Gibson, Mississippi, to protest the communitys persistent racial inequality and segregation. In ringing language, the court held that the boycotters exercise of their rights to speech, assembly, and petition . . . to change a social order that had consistently treated them as second-class citizens rested on the highest rung of the hierarchy of First Amendment values.

No matter what you think about the Israeli-Palestinian conflict, one thing is clear: The First Amendment protects the right to engage in political boycotts.

This is a proud constitutional legacy. Today, though, the right to boycott is under assault. Over the past several years, federal, state, and local legislators have introduced wave after wave of legislation seeking to stamp out boycotts and divestment campaigns aimed at Israel. One such law, passed earlier this year by Nassau County in New York, prohibits the county from doing business with people who support the BDS movement. As a result, Roger Waters of Pink Floyd fame could be banned from playing at the Nassau Coliseum in New York. Similar laws have been passed in Arizona and Kansas.

None of them comport with the First Amendment.

The Israel Anti-Boycott Act introduced in Congress goes a step further, threatening severe civil and criminal punishment against individuals who refrain from doing business with Israel because of their political opposition to its governments actions. The bill amends two existing laws, the Export Administration Act of 1979 and the Export-Import Bank Act of 1945, which prohibit certain boycotts sponsored by foreign governments.

The bill would expand the application of those laws in a number of ways. It would expand the laws to prohibit boycotts called for by international organizations, like the United Nations and the European Union; it would threaten sanctions against people who boycott businesses operating in Israeli settlements in the occupied Palestinian territories; and it would prohibit even requests for information about companies business relationships with Israel and Israeli companies. This expansive language would likely chill a wide range of political activity in the United States directed at the Israeli government activity that is constitutionally protected, regardless whether members of Congress agree with it.

A number of the bills sponsors were apparently surprised by the ACLUs free speech concerns with the bill. A number of them have now expressed their intention to review the legislation with the ACLUs civil rights and civil liberties concerns in mind. We hope they do the right thing by backing away from any bill that violates our First Amendment rights.

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The First Amendment Protects the Right to Boycott Israel - ACLU (blog)

A row blew up in Milwaukee between city officials and the owner of an augmented reality game.

The city claimed that augmented realitygameplayers were costing tens of thousands of dollars in law enforcement and park maintenance by trampling grass and flowers, and staying past park hours. They demanded permits for all virtual and location-based AR games. Companies were instructed to submit a certificate of insurance for $1 million general liability cover (with the prospect of further fees) before their games could be played in public areas of the city.

Candy Lab AR, who make the AR game Texas Rope Em sued. The poker game entails players travelling to various local areas in order to build their card collections.

Milwaukee challenged the lawsuit but US District Court judge Joseph Peter Stadtmueller, said that the game, along with others, qualify for Constitutional protection.

The Ordinance treats game developers like Candy Lab as though they are trying hold an event in a Milwaukee County park, said Judge Stadtmueller. However, this misunderstands the nature of the problem. Requiring Candy Lab to secure insurance, portable restrooms, security, clean-up, and provide a timeline for an event is incongruent with how Texas Rope Em (or any other mobile game) is played.

The judge listed various examples of location-based games, including Pokemon Go. He said that the basic protections offered by the First Amendment dont change purely because the entertainment medium does.

Image courtesy of Pokemon Go.

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AR games given protection under the First Amendment - Blooloop

When Friedrich Nietzsche declared that God is dead, of course he did not mean it literally. Rather, he meant men following their will to power had essentially sidelined God and abandoned decency. I am increasingly persuaded that Nietzsche was presaging our era.

The U.S. Court of Appeals for the Second Circuit recently released Fratello v. Archdiocese of New York (2d Cir. July 14, 2017), which held that a female principal of a Catholic school has no legal recourse when a priest engages in ugly, sexist behavior toward her that would be actionable in any other scenario. It is a classic case of gender discrimination and retaliation, although you would never know it from the lengthy opinion that never articulates her claims but rather treats them as just some generic complaints from a woman. According to the complaint, her supervisor, Fr. Joseph Deponai, told her that she should not have coffee alone in her office with the male facilities manager, because it would create scandal, and he falsely accused her of adultery. She alleges that his inappropriate, sex-based comments led her not to meet with male colleagues in her office and that she was let go when she complained about Deponai.

Why did Fratello receive no shelter from the federal or state civil rights laws? Because of the ministerial exception under the First Amendment, which was cemented by the U.S. Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. That doctrine, as developed by the Court, holds that ministers of religious organizations cannot sue their employers under the discrimination law. In Hosanna-Tabor, it was the Americans with Disabilities Act the religious entity circumvented; in this case it is Title VII.

It would have been one thing for the Court to say that a religious organization is shielded from the civil rights laws when it follows its beliefs. For example, and this came up more than once during Hosanna-Tabors oral argument, the Catholic Church believes that only men can be priests. In that circumstance, the First Amendment argument makes senseno women need apply or go to court. Unfortunately, the Court and now the Second Circuit with its curiously long opinion short on facts and long on law office history crafted a wooden rule that says that if the employee can be classified as a minister then the organization is simply immunewhether its behavior was religiously motivated or not.

Thus, in the Fratello case, the better approach would have been to ask whether the gender discrimination was required by the religion. Obviously, there is no Catholic belief that requires a supervisor to lie about an employees sexual behavior to others or that requires women to avoid talking to male compatriots. In other words, this is a case where she should have been able to sue, and the religious organization should have been legally rebuked for its behavior. Instead, the case basically tells religious organizations to discriminate away without consequence.

The pro-religion tone of the opinion combined with the trivialization of Fratellos claims is troubling and actually surprising coming from the Second Circuit. This was the circuit after all that took a principled stand against the demands of some religious entities to turn public school buildings into churches on the weekends in Bronx Household of Faith v. Board of Education and read Title VIIs gender discrimination prohibitions to encompass sexual orientation in Christiansen v . Omnicom Group. But even more surprising is how the opinion goes out of its way to sideline the Establishment Clause and the separation of church and state. In a footnote it defines the separation of church and state by quoting a law professor in a 2003 law review article saying its shorthand for vague notions of religious liberty in the First Amendment. Apparently, the Second Circuits library lacks any of the Supreme Courts Establishment Clause cases that would show that it is a lot more than the weak stepsister to the Free Exercise Clause. This reminds me of the times when Chief Justice Rehnquist would take down a litigant who had no case and just a treatise to support an argument. He made it very clear that Supreme Court cases were the precedents that mattered, not treatises or law professors. But this is no litigant. It is the Second Circuit, which should have said nothing at all before brazenly ignoring decades of precedent.

It is my view that religious organizations led by humans often err, and that they need to be reminded once in a while of the requirement of decency and integrity just like the rest of the humans in society. This case is an excellent example as was the race discrimination case in Rweyemamu v. Cote and the disability case in Hosanna-Tabor. When the behavior is not required by faith, it is likely just bad behavior that the church would do well to curb. Human nature being what it is, churches would actually do better in the long run with more legal strictures in this arena rather than fewer, and those advocates pressing for ever greater immunity for the religious are doing them no favors. The image of the Catholic Church in this case and in Petruska v. Gannon University as aggressively sexist, and in Rweyemamu as racist, and the impression of the Evangelical Lutheran Church in Hosanna-Tabor as callous toward a woman with a disability, are not going to slow down the trend toward an ever-growing number of Nones or lead to an increase of those with a strong religious affiliation.

The bottom line is that in a case like Fratello the ministerial exception stands for the proposition that a religious organization cant be sued for discrimination. But that is a far cry from a requirement that the organization discriminate, or that if it has someone engaging in what would otherwise be illegal behavior, it must litigate. Having spoken to many of the litigants in these cases, the no-holds-barred litigation stance throws salt on the festering wound of being treated worse by their own religious organization than they might have been if they had worked for a secular corporation. The discrimination is felt as a betrayal of the goodness of the organization; the aggressive legal defense is just ugly.

While it is not difficult to come up with some tendentious explanation for first treating these employees badly and then litigating it to the hiltand no doubt their lawyers and amici have cornered that marketdoesnt a rational person have to ask why did these religious organizations find it in their interest to publicize their socially and morally unpalatable behavior? I mean, really: where is the upside in a religious organization protecting a chauvinist by firing a female employee or using race to hire and fire? You really dont need the scandal of clergy sex abuse to understand why Americans are fleeing organized religion. If religious organizations could for one moment in this era quit listening to lawyers and start considering simple decency we might all benefit.

It would be a mistake, however, to view these ministerial exception cases in a vacuum. They are part of a larger, more troubling social pattern of religious entities demanding a right to discriminate and harm others, as I discuss here. The Religious Freedom Restoration Act, of course, was put in motion to shield believers from the laws that apply to everyone else, and has been deployed to trivialize womens rights against gender and religious discrimination in their benefit packages in Burwell v. Hobby Lobby and to pave the way to discrimination against a transgender employee in EEOC v. R.G. & G.R. Harris Funeral Homes, Sean F. Cox Inc., just to name two examples. Yet, even RFRA has not been enough for the religious lobbyists, who have further demanded the inaptly named First Amendment Defense Act (FADA). The very title of this bill tells you that religious lobbyists are overreaching: it implies that its provisions carry out the requirements of the First Amendment when in fact it does no such thing. Its sui generis. The First Amendment didnt require RFRA, either. Its just a statute.

Some members of Congress now see that RFRA was a step too far. Reps. Bobby Scott (D-Va.) and Joseph Kennedy (D-Mass.) accordingly have introduced the Do No Harm Act again this year. In his release, Kennedy correctly stated the basic common sense principle that, Inherent in our nations right to religious freedom is a promise that my belief cannot be used to infringe on yours or do you harm. The bill would protect people, and especially those who are not part of the faith, from discrimination in employment and in healthcare. It also shields the most vulnerable: children from the use of RFRA in cases involving child labor, abuse, or exploitation. Why anyonereligious to atheistwould permit RFRA to continue to apply to children in the first place is beyond me, but there it is.

This bill is the counterpart to the earlier RFRA enhancement bill entitled the First Amendment Defense Act that explicitly would have permitted discrimination against LGBTQ in employment and other arenas. FADA appears to have no momentum; unfortunately, the Do No Harm Act in this Administration suffers the same fate. But that does not mean the Trump Administration is not plotting to make sure that religious believers have the latitude they need to harm others.

Recently in a closed door session, Attorney General Jeff Sessions reportedly promised the Alliance Defending Freedom new regulations implementing RFRA across the federal government and even implicitly some help with their cases aimed at reining in LGBTQ rights and pushing LGBTQ out of the way of conservative Christian believers. One can only imagine what fresh harm to others is being concocted right now. What we do know for certain is that unlike the ministerial exception, it is not constitutionally required and those who are harmed should stand up, speak out, and invoke the laws on their side against RFRA. They should also demand an end to RFRA, not just its scaling back. After all, in the end, its nothing more than a poorly thought-out statute with an abnormally high number of unknown and negative consequences.

The Courts current ministerial exception doctrine is another matter, because it is grounded in an interpretation of the First Amendment. It cannot be altered by a simple majority vote in Congress. Its negative effects, however, could be ameliorated by religious organizations who stay true to their beliefs, but who refuse to harbor and encourage what the rest of the culture can see quite clearly is discriminatory, hurtful behavior. The phrase primum non nocerefirst do no harmcomes to mind.

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So When Will Religious Organizations Choose Not to Discriminate ... - Justia Verdict

Reprinted with permission from MediaMatters.

The National Rifle Associations broadcast platform NRATV has launched its latest attack against freedom of the press, this time targetingTheWashington Post, calling the newspaper a fake news outlet and claiming it is where journalism dies.

On July 11, thePostpublished anarticlecalling an NRATVvideoabout political unrest in the U.S. dark. The article noted that the video condemned Democratic politicians, the media and activists as the catalysts for political upheaval in this country, with one glaring omission: firearms. According to the article, the video focused on political discussions around public safety during civil unrest, with less clear connections to Second Amendment rights.

On July 17, NRATV released a responsevideofeaturing NRATV host Grant Stinchfield, who called out thePostreporter by name and slammed him for tell[ing] us we cant have an opinion unless its about guns.

The video also accused thePostof spreading lies about those who disagree with their radical agenda and said the newspaper is pushing organized anarchy that is destroying our country. Stinchfield went on to claim, You people do more to damage our country with a keyboard than every NRA member combined has ever done with a firearm.

Less than one day after the videos release,The New York Times Max Fishertweetedthat the video is edging right up to the line of endorsing violence against journalists, while HuffPostcalledit disturbing.

Despite the mounting criticism, Stinchfield doubled down on his video during the noon edition of NRATVsStinchfieldon July 18, claiming the newspaper uses its keyboards as weapons of destruction:

GRANT STINCHFIELD: TheWashington Postis out of line. They claim to uphold the standards of journalism when, in fact, they use their keyboards as weapons of destruction as they try to tear apart the Trump administration in an effort not just to destroy him, but to destroy America, and it is wrong.

This video is just the latest in a growing number of attacks the NRA has launched against both the press and freedom of the press since Donald Trump won the Republican nomination for president and was ultimately elected. During anOctober 26, 2016, broadcast, Stinchfield characterized dissent against Trump as an assault against the Constitution. A month later, during aNovember 29broadcast, Stinchfield called mainstream media dishonest and downright dirty,suggesting that it is anti-patriotic to report critically on Trump and his transition team, and said that the media instead needs to get on board.

AfterThe New York Timesran anadvertisementduring this years Oscar awards about the importance of journalism, the NRA fired back with its own 75-secondadclaiming Americans have stopped looking toThe New York Timesfor the truth. And in April, the NRAannounceda series of messages against the newspaper, which the organization claims has gone on the offensive to take away your liberties.

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Here Is The NRA's Latest Attack Against The First Amendment - The National Memo (blog)

First Amendment, amendment (1791) to the Constitution of the United States that is part of the Bill of Rights and reads,

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The clauses of the amendment are often called the establishment clause, the free exercise clause, the free speech clause, the free press clause, the assembly clause, and the petition clause.

The First Amendment, like the rest of the Bill of Rights, originally restricted only what the federal government may do and did not bind the states. Most state constitutions had their own bills of rights, and those generally included provisions similar to those found in the First Amendment. But the state provisions could be enforced only by state courts.

In 1868, however, the Fourteenth Amendment was added to the U.S. Constitution, and it prohibited states from denying people liberty without due process. Since then the U.S. Supreme Court has gradually used the due process clause to apply most of the Bill of Rights to state governments. In particular, from the 1920s to the 40s the Supreme Court applied all the clauses of the First Amendment to the states. Thus, the First Amendment now covers actions by federal, state, and local governments. The First Amendment also applies to all branches of government, including legislatures, courts, juries, and executive officials and agencies. This includes public employers, public university systems, and public school systems.

The First Amendment, however, applies only to restrictions imposed by the government, since the First and Fourteenth amendments refer only to government action. As a result, if a private employer fires an employee because of the employees speech, there is no First Amendment violation. There is likewise no violation if a private university expels a student for what the student said, if a commercial landlord restricts what bumper stickers are sold on the property it owns, or if an Internet service provider refuses to host certain Web sites.

Legislatures sometimes enact laws that protect speakers or religious observers from retaliation by private organizations. For example, Title VII of the federal Civil Rights Act of 1964 bans religious discrimination even by private employers. Similarly, laws in some states prohibit employers from firing employees for off-duty political activity. But such prohibitions are imposed by legislative choice rather than by the First Amendment.

The freedoms of speech, of the press, of assembly, and to petitiondiscussed here together as freedom of expressionbroadly protect expression from governmental restrictions. Thus, for instance, the government may not outlaw antiwar speech, speech praising violence, racist speech, pro-communist speech, and the like. Nor may the government impose special taxes on speech on certain topics or limit demonstrations that express certain views. The government also may not authorize civil lawsuits based on peoples speech, unless the speech falls within a traditionally recognized First Amendment exception. This is why, for example, people may not sue for emotional distress inflicted by offensive magazine articles about them, unless the articles are not just offensive but include false statements that fall within the defamation exception (see below Permissible restrictions on expression).

The free expression guarantees are not limited to political speech. They also cover speech about science, religion, morality, and social issues as well as art and even personal gossip.

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Freedom of the press confirms that the government may not restrict mass communication. It does not, however, give media businesses any additional constitutional rights beyond what nonprofessional speakers have.

Freedom of petition protects the right to communicate with government officials. This includes lobbying government officials and petitioning the courts by filing lawsuits, unless the court concludes that the lawsuit clearly lacks any legal basis.

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First Amendment | Contents & Supreme Court Interpretations ...

Shortly before its summer recess, the U. S.Supreme Court unanimously issued a pair of concurrent rulings concerning the right of freedom of speech under the First Amendment. Although neither arose in Minnesota, the pair are of particular interest and importance here.

MinnPost photo by Jana Freiband

Marshall H. Tanick

Both cases were significant, as are nearly all opinions of the high court, since the tribunal hears and decides only about 70 cases a year, less than 1 percent of the civil and criminal lawsuits it is requested to adjudicate annually. One of these rulings deservedly got ample public glare, perhaps even more than merited, while the other received much less attention than it warranted.

The former, Matal v. Tam[PDF], struck down a provision of the federal trademark law forbidding registration of any disparaging name or markthat reflects "contempt or disrepute" for an individual, group, or organization. The challenge was brought by an Asian-American rock musicband known as "Slants," a reference to the derogatory phrase "slant-eyes" for Asian-Americans, after the Trademark and Patent Office refused to accept its name for legally protected intellectual property. The justices, in a ruling written by Justice Samuel Alito, reasoned that the proscription constitutes impermissible "viewpoint" censorship.

The ruling garnered lots of attention and accompanying acclaim because of its popular-culture subject matter. But it also was noteworthybecause of its seemingly fatal implication for the Trademark Office's declination of the nickname "Redskins" for the professional football team representing the nation's capital. The high court refused last fall to review that rulingat the same time as it took on the "Slants" case, but theoutcome in the rock-band case maydoom the decisiondisallowing the "Redskins" appellation.

That issue has particular resonance here.A number of leaders of the Native American community, along with many supporters, have vigorously opposed use of nicknames by sports teams they deem to denigrate them, although there are questions regarding the breadth of that aversion among rank-and-file Native Americans. As a result, school boards throughout the state have removed and replaced offensive Native American-related appellations from their squads, which has also occurred in other jurisdictions and at both public and private educational institutions.

Additionally, the Native American objectors, represented by a Minneapolis law firm, obtained the ruling from the Trademark office canceling the trademark of the "Redskins" name and logo, although that determination now is of dubious validity in light of the outcome of the "Slants" suit.

The contretemps has not been lost on the media, including some in Minnesota, that have struggled for years over how to report the names of athletic teams that have versions of Native American nicknames, particularly professional baseball and football teams.

The other high court free-speech decision, though, may have even more widespread significance. The case, Packingham v. NorthCarolina, concerned a state law that barred registered sex offenders from using any social media that is accessible to children. The Supreme Court, as in the "Slants" case, invalidated the measure as an unlawful restriction on freedom of expression.

In so doing, the decision authoredby JusticeAnthony Kennedy noted the ever-increasing and "protean" nature of the internet, pointing out that the number of Facebook users is thrice the population of the North American continent. Recognizing these features, the ruling equates the internet with traditional expressive forums like parks and other public places where freedom of speech is allowed to be largely untrammeled. That portion of the decision is suggestive that restraints on internet communications must besparse or virtually nonexistent to pass constitutional muster.

The implication drew some concern fromthree members of the court, led by Justice Joseph Alito, who has emerged as one of the strongest First Amendment defenders on the high court, which has taken on what Harvard Law School professor Noah Feldman describes as a "free speech absolutism" hue. Alito's centrality to this approach was exemplified by a solitary dissent he authored a few years ago supporting the right of anti-gay-rights extremists to protest vocally at military burial services in objection to the expansion of gays and lesbians in the armed services.

Although Alito and the other two, Chief Justice John Roberts and Justice Clarence Thomas, voted with the majority, they joined in a concurring opinion that lamented the far-reaching implications of the decision that would seem to bar any efforts to restrict social media communications by criminal offenders.

It remains to be seen how the ruling will affect conditions imposed on them or, for that matter, commonly accepted limitations on use of social media to engage in offensive or harassingcommunications. These types of restrictions are frequently resorted to by judges in Minnesota, and elsewhere in sentencing of criminal wrongdoers, including sex offenders, as well as inmarital disputes and other inter-personal spats.

The unanimity of these two freedom-of-speech decisions by the Supreme Court reflects their broad acceptanceacross the ideological spectrum. But they also are likely to be heard from again as these rulingsand their underlying reasonings play out inthe courts in Minnesota and around the country.

Marshall H. Tanick is aconstitutional lawattorney with theTwin Cities law firm of Hellmuth & Johnson.

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First Amendment: Two recent Supreme Court decisions are of particular interest and importance in Minnesota - MinnPost

Janine Jackson interviewed Mara Verheyden-Hilliard about the right to protest for the July 14, 2017, episode of CounterSpin. This is a lightly edited transcript.

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Washington Post (6/27/17)

Janine Jackson: A recent popular op-ed called on those engaged in resisting the Trump administration to stop counting so much on lawyers. The fate of the nation cannot be left in the hands of the courts, the piece, written by a lawyer, argued, and thats solid advice. Popular action is what historically has moved the country forward.

But when people do go into the street and are arrested, what then? When they put their bodies on the line and the state creates a new law to criminalize that resistance, what then? Like it or not, the law is still one of the bigger tools in the box for Americans. So what does and doesnt it do for us in the present moment?

Mara Verheyden-Hilliard is an activist and attorney. Shes co-founder and executive director of the Partnership for Civil Justice Fund. She joins us now by phone from Washington, DC. Welcome back to CounterSpin, Mara Verheyden-Hilliard.

Mara Verheyden-Hilliard: Thank you for having me.

JJ: Well, Id like to start, if we could, with an update on the J-20, those arrested in inauguration protests in DC, who are facing what Ive heard called unprecedented charges for demonstrators, felony charges that could lead to 75, 80 years in prison. One of those still facing charges is journalist Aaron Cant, now at the Santa Fe Reporter, who has written for FAIR. We talked about the case in January. What should we know now about this ongoing story?

Mara Verheyden-Hilliard: There are millions of people who are engaging in political protest and political organizing who have never done so before. (image: WTTG-TV)

MVH: This case is really of extraordinary proportions, when you look at what the government is doing to people who are engaged in protests on the first day that Trump took office. And its really in its own context significant, too, because of the major shift in policing in Washington, DC, which we believe is intended to send a signal.

Whats happened now is more than 200 people were swept up in a dragnet arrest by the police, and this occurred after the police had followed the demonstration for, by their own account, approximately half an hour, while there were some people who broke windows, only a handful of people. And rather than going in and arresting the people for whom they had probable cause to arrest, the police waited that arbitrary time, tracked and detained 200 people. And so they swept up demonstrators, passers-by, journalists, anyone whos in proximity, anyone who is chanting and protesting.

And then they undertook this mass prosecution with the United States Attorneys Office here in the District of Columbia, in which people are being threatened with, as youve mentioned, jail time that is decades and decades long, really a lifetime of jail time, with these felony charges. They are charging people en masse with crimes that may have happened, in terms of property damage, but charging everyone with crimes without particularized probable cause, without being able to point to a person and say, you committed this act and so were charging you for this act. Theyre charging everyone in the vicinity for being in proximity.

This is extremely dangerous; it sets the stage that for any demonstration, if anyone commits a criminal act, an act of property damage, whether that be a protestor or, frankly, a police agent provocateur, the police can now use this as license, or they wish to, to sweep up everyone else around them.

JJ: This is what we talked about before. Its not a crime, now, is it, to be in proximity to other people who break the law in conjunction with First Amendment activities?

MVH: Of course its not, and it cannot be. And the First Amendment has always stood for that, in fact, you cannot criminalize a person for the acts of another. And particularly in the context of the First Amendment, when its an issue where the connection is that there may be a sympathy of political views, one cannot do that. There are cases dating back, NAACP v. Claiborne Hardware and others, the courts said you have to act with precision. You cannot say that just because people have a similar point of view, or may have similar political goals, that those who carry out illegal acts or acts of violence in pursuit of those goals, that those acts can be attributed to the others who do not.

JJ: Right. These charges, at the level theyre at, it feels new, but we know that the effort to repress First Amendment expression is not new. The Supreme Court last month rejected a First Amendment case that dates from years back, Garcia v. Bloomberg. Can you tell us about that and how it relates?

Occupy Wall Street marchers on the Brooklyn Bridge, October 1, 2011. (cc photo: Mat McDermott)

MVH: The Garcia v. Bloomberg case comes from the Occupy demonstration of 2011, when 700 people were peacefully marching, compliant with police orders, there was no violence, and as people marched, the police escorted the march. The police themselves closed the Brooklyn Bridge roadway to vehicular traffic. The police and police commanders themselves opened up the roadway to pedestrian traffic. It is the police and police commanders who led the demonstrators onto the roadway of the Brooklyn Bridge, and once those demonstrators had flowed and followed behind the lead of the police, the police stopped the march, trapped them from behind, mass-arrested 700 people.

When we litigated this case, we won at the District Court level, we won at the Second Circuit, in fact. And then Mayor de Blasio, who had taken office, frankly, running on an Occupy ticket, had the court reevaluate the ruling, and the court, in an extraordinary measure, reversed itself. And we took this case up to the Supreme Court, and the Supreme Court just last month determined that they would not hear it.

JJ: Obviously, lots of folks are taking their lead from this, and kind of joining on this bandwagon. We have a spate of anti-protest legislation around the country, even UN experts are issuing alarmed statements now. Some 20 states have passed or tried to pass laws allowing protesters to be charged with conspiracy, increasing penalties for blocking streets, even protecting drivers who run protesters over, banning masks and hoodies. I mean, is anyone really confused that the intent of these rules is to quash dissent, and doesnt that thinly veiled intent matter?

MVH: Its clear that there is an effort around the country to try, through legal meansalthough we would consider illegal meansto curtail peoples fundamental First Amendment rights to gather together in the streets, to be able to speak out in unified action.

I do think, as much as were seeing these kinds of restrictions imposed and these rulings, that at the same time it can obviously have a chilling effect on people, the reality is that people do always come out and people will continue to come out. And while this may be intended to have a chilling effect, it is really crucial that people stand up and speak out for what they believe in. And I do think the reason that were seeing these is because there is a growing recognition that there really is this fire of people, these embers burning, where we keep seeing people come up and demonstrating for what they believe in. Were seeing so many more people entering political life, even since the election of Donald Trump. People are taking to the streets, protesting, who never protested before.

So while were faced with what is I think overt repression, both in terms of these felony prosecutions, these state laws, these court rulings, we also are faced with the fact that there are millions of people who are engaging in political protest and political organizing who have never done so before, and thats a force that really cant be stopped.

JJ: Weve been speaking with Mara Verheyden-Hilliard of the Partnership for Civil Justice Fund. Find them online at JusticeOnline.org. Mara Verheyden-Hilliard, thank you very much for joining us today on CounterSpin.

MVH: Thank you for having me.

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See the original post here:
'There's an Effort Around the Country to Curtail People's Fundamental 1st Amendment Rights' - FAIR