Category Archives: First Amendment

Another day, another RNS First Amendment story with zero focus on the First Amendment  GetReligion

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Another day, another RNS First Amendment story with zero focus on the First Amendment - GetReligion

This illustration is from theBoston Globe,January 28, 1902 as the state moved to vaccinate its citizens for smallpox. Massachusetts law required smallpox vaccination to prevent the disease's spread. A pastor challenged the law, saying it violated his religious rights under the First Amendment. The U.S. Supreme Court ruled in 1905 in Jacobson v. Massachusetts that Jacobson's religious rights had to give way to the common good, and that the emergency situation justified the government's action. (Image, public domain)

In Jacobson v. Massachusetts(1905), the Supreme Court upheld a states mandatory compulsory smallpox vaccination law over the challenge of a pastor who alleged that it violated his religious liberty rights.

Pastor Henning Jacobson contended that he had a right under the Free Exercise Clause of the First Amendment to avoid the mandatory vaccination law.

The U.S. Supreme Court, in an opinion by Justice John Marshall Harlan I, ruled that the state of Massachusetts acted constitutionally within its police powers to pass a law to protect the health and safety of the public.

According to settled principles, the police power of a State must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety, Harlan wrote.

Jacobson argued that the smallpox vaccination law not only infringed on his religious liberty but also was arbitrary and capricious. The Court disagreed, writing that Jacobsons individual right must give way to the common good.

Harlan explained: But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good.

The Court emphasized that government officials were acting out of necessity as smallpox was prevalent and increasing at Cambridge. This emergency situation justified the government officials action in making the smallpox vaccination mandatory.

The Jacobson decision has come back into prominence in First Amendment jurisprudence, as many courts have cited the decision when confronting First Amendment challenges to various executive orders and edicts passed in the wake of the pandemic caused by the Coronvirus known as COVID-19.

David L. Hudson, Jr. is a First Amendment Fellow at the Freedom Forum Institute and a law professor at Belmont University who publishes widely on First Amendment topics. This article was published June 3, 2020.

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Jacobson v. Massachusetts | The First Amendment Encyclopedia

First Amendment Experts Question One of the Jan. 6th Committees Recommendations on the Role of the Media  Law & Crime

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First Amendment Experts Question One of the Jan. 6th Committees Recommendations on the Role of the Media - Law & Crime

There is no horseshoes and hand grenades exception in the First Amendment and latest SCOTUS case proves it  Fox News

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There is no horseshoes and hand grenades exception in the First Amendment and latest SCOTUS case proves it - Fox News

Ex-College Soccer Player Scores Win in First Amendment Suit Against Coach Who Benched Her After She Refused to Take a Knee  Law & Crime

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Ex-College Soccer Player Scores Win in First Amendment Suit Against Coach Who Benched Her After She Refused to Take a Knee - Law & Crime

1. What Is the Compelled Speech Doctrine Under the First Amendment?  The New York Times
2. Op-Ed: Elenis case asks the Supreme Court whether 1st Amendment protects discrimination  Los Angeles Times
3. The First Amendment shouldnt trump human rights  The Emory Wheel
4. The First Amendment Needs To Protect Everyone (Even Homophobic Web Designers) To Protect Anyone  Techdirt
5. ACLU Now Sides With Government Against First Amendment Rights  Daily Signal
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What Is the Compelled Speech Doctrine Under the First Amendment? - The New York Times

Law students settle First Amendment suit with University of Idaho  Idaho Press

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Law students settle First Amendment suit with University of Idaho - Idaho Press

1. It's Time to Reaffirm Our First Amendment Right to Boycott | News & Commentary | American Civil Liberties Union  ACLU
2. ACLU of Arkansas urging Supreme Court to hear case on First Amendment right to boycott  KATV
3. ACLU asks US Supreme Court to overturn Arkansas law requiring pledge not to boycott Israel  JURIST
4. High court asked to stop Arkansas law against Israel boycott  KY3
5. ACLU Asks U.S. Supreme Court to Overturn Arkansas Law Against Israel Boycotts - U.S. News  Haaretz
6. View Full Coverage on Google News

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It's Time to Reaffirm Our First Amendment Right to Boycott | News & Commentary | American Civil Liberties Union - ACLU

A federal district judge now has a chance to vindicate the First Amendment rights of every American citizen and affinity group.

Judge Liles Burke of Alabama held a hearing on Friday on a motion to quash an abusive subpoena by the Justice Department. The subpoena was issued against the conservative Eagle Forum of Alabama, but it would have been just as abusive if filed against, for one example, the liberal NAACP.

The subpoena was issued by Assistant U.S. Attorney Jason Cheek, seeking an absurdly voluminous five full years of records, both paper and electronic, about every discussion the Eagle Forum had in support of a new law to restrict gender-transition procedures upon children. One bizarre aspect to the subpoena is that Eagle Forum is not even a party to the underlying case, in which the DOJ and others are challenging the constitutionality of Alabamas new law.

To assess constitutionality, it matters not which outside groups supported the law or why. Every citizen and group of citizens has a First Amendment right to petition the government and to speak and otherwise engage in the political process, for any reason whatsoever. Their reasoning has no bearing on the ultimate question of constitutionality, and they have every right to keep their communications private from government commissars and prosecutors.

If the shoe were on the other foot and the National Abortion Rights Action League had successfully petitioned a state legislature to make abortions legal for any reason up to the very moment of birth, the government would have no constitutional authority to demand NARALs records. NARALs stratagems, its allies, its membership, its phone calls, and its emails are none of the governments business unless somehow NARAL itself is credibly accused of a crime and even then, there would be tight restrictions on governmental authority to demand records.

Likewise with the Eagle Forum, which in no way, shape, or form is suspected of illegal activity. It is not and never will be illegal for a group of citizens to work for legislative change.

With the support of a host of congressmen and other conservative groups and legal experts, the state Eagle Forum understandably asked that the subpoena be withdrawn. What is astonishing is that only conservative groups joined the effort. How can left-wing groups not see how dangerous such power would be to them if used in the same way by a conservative DOJ? Where, pray tell, is the American Civil Liberties Union? Are conservative groups not as entitled to civil liberties as left-wing organizations?

Every individual and every public policy organization on the Left and on the Right should care when the Department of Justice seeks to chill the First Amendment rights and the speech and lobbying activities of American citizens, said Anne Cori, national chairman of the Eagle Forum (of which the Alabama group is an affiliate). Weaponizing the Department of Justice hurts all sides of the political debate.

Judge Burke, in Fridays hearing (he has issued no formal order yet), called the original subpoena vastly over-broad and unduly burdensome. Even before the judge uttered those words, the prosecutors, obviously realizing they had overreached, had offered to narrow the scope of the subpoena.

To which, in its reply brief, the Eagle Forum quite sensibly argued that in the case of such rights, to the contrary, no reasonable compromise was or is possible, and none is required.

Judge Burke would be right to order that no subpoena at all be issued to Eagle Forum. Fundamental rights arent sliceable.

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Alabama judge has chance to be a hero for the First Amendment - Washington Examiner

Former President Donald Trump speaks during a Save America rally on Oct. 1, 2022 in Warren, Michigan. (Photo by Emily Elconin/Getty Images)

Former President Donald Trump threatened to sue the Pulitzer Prizes board, administrator and members for defamation less for what they wrote, but for the reporting that they lauded during the time of Russia investigation.

By ratifying the 2018 prizes awarded to The New York Times and The Washington Post, the Board and its individual members are participating in and perpetuating the absurdly false and defamatory narrative contrived by the Presidents political opponents: that he and his campaign somehow colluded with Vladimir Putin and the Russian government to gain advantage in the 2016 U.S. presidential election, and thereafter maintained some nefarious connection with Russian elements during the presidential transition and Trump administration (the Russia Collusion Hoax), his attorneys R. Quincy Bird and Jeremy D. Bailie wrote.

The former presidents other attorneys John P. Rowley III and John S. Irving had asked the board in July to withdraw the 2018 prizes, and the Pulitzer board refused that request, issuing a statement that no subsequent facts discredited the prizes that they bestowed. The new letter labels that statement of confidence in their judgment as defamatory.

The Pulitzer boards statement is embedded in Trumps legal threat.

Trump demanded that the board issue a full and fair correction, apology, or retraction within five days, or potentially face a lawsuit against the body and its members.

First Amendment exports scoffed at theory that bestowing honors on news coverage can be defamatory.

Just cartoonishly vexatious, expert Ken White, known by the legal nom de plume Popehat, told Law&Crime.

Trump tried, and spectacularly failed, to sue more than two dozen people in a vast racketeering suit. More than dismissing the case, a federal judge roasted the complaint as trying to substitute length, hyperbole, and the settling of scores and grievances for legal merit. The former presidents lawyer Alina Habba vowed to appeal, but his legal team is currently staring down sanctions motions in that case.

Special counsel Robert Muellers report on Russian interference in the 2016 elections did not find a chargeable criminal conspiracy between the Kremlin and the Trump campaign. Mueller did, however, find that Russia wanted Trump to win the race and the campaign welcomed that help. He also found that Trumps conduct to stymie the probe repeatedly met every prong of the federal obstruction statute. The special counsels office brought charges against 34 people and entities, resulting in eight guilty pleas and a conviction at trial. Numerous Russian-based defendants remain at large, and Muellers report found that an associate of Trumps campaign chair Paul Manafort handed internal polling data to Konstantin Kilimnik, a man identified by a GOP-led Senate committee as a Russian intelligence operative.

Yet time and again, Trump has returned or threatened to return to the courts for a judicial determination that the probe that convicted several of his cronies was, in fact, a massive hoax. Each time to date has failed.

Legal experts believe that, if Trumps lawyers actually file this threatened lawsuit, their latest effort would be no more effective than the others.

Hes talking about suing people for a subjective evaluation by a prize organization of whether or not they think stories are inaccurate, White noted. There is no plausible way that that can be a provably false statement of fact. It is a statement of opinion and analysis and commentary on multiple different levels. The only thing this is about is fundraising, gesturing to the base and being a thug, frankly.

White added that he would have assumed the former presidents litigation threat against the Pulitzer board was empty, until Trump actually sued CNN for using the phrase Big Lie and airing segments comparing him to Adolf Hitler.

As a First Amendment lawyer and advocate, White appraised that lawsuit as completely frivolous and contemptible, noting that they are statements of opinion rather than inaccurate factual assertions.

The letter from Trumps counsel indicates that any lawsuit may be filed in the state of Florida, which has a muscular anti-SLAPP statute. Short for Strategic Lawsuits Against Public Participation, anti-SLAPP law punishes lawsuits designed to chill free speech.

Former federal prosecutor Mitchell Epner, who now practices media law as a partner with the firm Rottenberg Lipman Rich PC, said the Sunshine State statute makes sanctions compulsory in certain instances.

If you file a defamation or similar claim against somebody for speaking on a matter of public interest and your claim is dismissed on a motion to dismiss or a motion for summary judgment because there are no facts to support it the court has no discretion: It must award attorneys fees to the winning side as a sanction, Epner told Law&Crime.

Thats chargeable, not against the losing attorneys, but against the losing client, he added.

Even if a court awards sanctions in a hypothetical suit, some legal experts like White believe it wont deter Trump from filing lawsuits with little legal merit.

Trump went out fundraising the day after he filed that incredibly abusive defamation suit against CNN, and I have no doubt that he is raising a lot more money than hes going to be sanctioned for even if you lose it as an anti-SLAPP motion, White said.

In light of the financial and other incentives, White noted, stronger deterrence than attorneys fees is needed.

If youve got a situation where you have unethical attorneys and youve got financial incentives to file meritless lawsuits to drive contributions, and votes and clicks then youve got absolutely nothing standing between people and frivolous lawsuits, he continued. And thats a real problem.

Epner believes Trumps emphatic defeat in his RICO case might turn the tide, should sanctions motions abound.

You get enough of these sanctions, all of a sudden, you actually do have the rarest of animals: a potentially meritorious disbarment situation, Epner said. Trumps recent lawsuit that was filed against CNN seems to me to be a similar press-release-as-a-lawsuit. I fully expect that that will be dismissed and attorneys fees will be awarded to the prevailing defendants.

CNN legal analyst Jennifer Rodgers, a former federal prosecutor from the Southern District of New York, demurred in predicting whether or what kinds of sanctions may be imposed, if Trumps attorneys filed the lawsuit but she felt comfortable with a different prognostication.

Much more predictable is that a lawsuit like this would fail, she said.

Read the legal threat from Trumps lawyers to the Pulitzer Board, here.

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Trump Threat to Sue Pulitzer Board Is 'Vexatious': Lawyer - Law & Crime