Category Archives: First Amendment

Sometimes the First Amendment guarantees access to public records (generally limited to court records). Often Freedom of Information Acts and Public Records Acts are seen as fulfilling broader First Amendment values, by facilitating speech about how the government operates. But in Thursdays Roe v. Anderson (W.D. Wash. Oct. 23, 2014), a federal district judge relied on the First Amendment to block a state public records request.

Washington law requires erotic dancers to get licenses, and the Washington Public Records Act apparently mandates the release of licenses generally, including these licenses. But the dancers, the district judge held, have raised serious questions regarding whether this violates their First Amendment rights, because revealing their names and other personal information can expose them to harassment and threats to their physical safety. (Compare Doe v. Reed (2010), which applied First Amendment scrutiny to disclosure of the names of petition signers, though held that, given the government interests supporting such disclosure, the disclosure was indeed constitutional.) According to the Steve Maynard (Tacoma News Tribune), the man who requested the names said he was curious and he wants to pray for the strippers. I would pray for those dancers by name, David Van Vleet said after the hearing. Im a Christian. We have a right to pray for people.

I should note that this case might be relied on by analogy in Second Amendment cases, in situations where people try to use public records laws to get the names of registered gun owners, or of registered holders of gun carry licenses. (The Supreme Court held, in D.C. v. Heller (2008), that there is no constitutional right to concealed carry, but some courts the Seventh and Ninth Circuit and the Illinois Supreme Court have held that there is a constitutional right to some form of carry, and in some states a license is required for any sort of carrying.) Its always uncertain, of course, how much courts will accept such analogies.

In any event, here are some excerpts from the opinion:

I. FINDINGS OF FACT

10. Under PCC 5.14.100 and 5.14.110, managers and dancers at an erotic dance studio are required to apply for and maintain managers and dancers licenses that are issued by the Auditor. Under PCC 5.14.080 and 5.14.090, these licenses expire and are renewed on an annual basis.

11. Dancers at Dreamgirls at Foxs identify themselves to patrons by a pseudonym commonly known as a stage name. The purpose of the stage name is to maintain the dancers privacy and to protect them from stalking, harassment, discrimination, public embarrassment, and violence when they are outside the club.

15. Defendants Anderson and Pierce County are subject to the requirements of the Washington Public Records Act, (hereinafter PRA) .

16. The manager and dancer licenses issued and maintained by Defendant Anderson are public records as defined RCW 42.17.020, subsections (36) and (42).

17. Agencies such as the Auditors Office and Defendant Pierce County are required by the PRA to disclose public records upon request to anyone making the request and disclosure of the records is mandatory. The only public records protected from disclosure are those specifically mentioned in a statutory exemption.

The rest is here:
Volokh Conspiracy: First Amendment vs. freedom of information law

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PHILADELPHIA (CBS) The Pennsylvania chapter of the American Civil Liberties Union says it is preparing to file a lawsuit to get the states new Revictimization Relief Actoverturned.

Signed into law on Tuesday, the law whichthe ACLU says is unconstitutional bans conduct by criminal offenders that causes mental anguish to their former victims.

We are cautiously optimistic that a federal judge will take a quick look at this and say, Youve got to be kidding me, Vic Walczak, legal director of the ACLU of Pennsylvania, tells KYW Newsradio.

(File photo)

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He says they are working to file a First Amendment lawsuit to block the law, which allows personal injury victims to sue their offenders, whether theyre in or no longer in prison.

The law was fast-tracked and approved just days after convicted cop killer Mumia Abu Jamal gave an October 5th commencement speech to a Vermont college.

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ACLU Says New Pa. Law Violates First Amendment Rights of Convicts

First Amendment Video Project
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Newswise WASHINGTON, DC (October 23, 2014)One billion Facebook users generate 2.7 billion likes per day (or 1,875,000 every minute). Increasingly, social media has become a form of social and political engagement, and 47 percent of Facebook users have liked political cause-related comments. Protected free speech is a luxury the Western world has long enjoyed. Does clicking the universally understood thumbs-up like constitute actual speech? It conveys a message understood by most, but should it command constitutional protection? A recent article in the National Communication Associations First Amendment Studies journal explores legal precedents surrounding this form of communication and surveys Facebook users attitudes.

In the case of Bland v. Roberts, an employee was fired for liking a campaign lobbying against his boss. The employee claimed the right to free speech, but the judge ruled that in the absence of sufficient speech, the case could not proceed to trial. The employee was not reinstated. An ensuing debate revealed that large numbers of individuals felt this judgment would lead to fear and inhibition, and deter free expression of ideas and opinions onlinethe chilling effect. Ironically, the First Amendment protects symbolic language, even rude gestures such as the finger. If it can stretch this far, then surely it is not unreasonable to expect coverage for the Facebook thumbs up. In the context of todays morphing methods of communication, is the law failing to keep up?

The authors developed a study of Facebook users and devised a First Amendment Scale to examine the value of computer source code communication and its relation to free speech. Four hundred forty-four participants took part. More than half had liked political content in the past. Four hypotheses were tested and all proved true:

1. Like users most certain of who would see their like expected recipients to understand their meaning. 2. Those who felt they had sent a message with a like were sure that recipients understood. 3. Participants believed when using like on political content that their posts were constitutionally protected. 4. Those using like to convey a message believed that this should be protected by the First Amendment.

The most common interpretations for like amongst participants were agree, support, and generally endorse a person, place, or idea. Overall, participants believed that a like was akin to speech as described in the First Amendment.

The twist in the tale is that on appeal, the Bland v. Roberts judgment was reversed, finding that the thumbs up indeed qualified for protection. In both offline and online domains, each community of social practice negotiates its own language conventions and creates its own democracy of meaning. The parsing of the First Amendment will continue to be influenced by these communities, note the studys authors, Susan H. Sarapin of Troy University and Pamela Morris of the University of WisconsinLa Crosse. They finish by urging further research on the chilling effect and its potential negative impact on freedom of speech online.

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NOTE TO JOURNALISTS

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Should a Facebook "Like" Be Protected Free Speech?

Im glad to hear this, since I think the dissenting judge on the panel had the much better argument. Here is the post I put up about this when the decision came down on Aug. 27:

The free speech rights here were as in many free speech cases the rights of pretty rude speakers, certainly ones whose message and manners I do not endorse. But the First Amendment protects the rude as well as the polite, especially given how subjective government judgments of rudeness usually end up being.

Here are the facts, from the majority opinion in Bible Believers v. Wayne County (6th Cir. Aug. 27, 2014) (some paragraph breaks added throughout the block quotes below):

The City of Dearborn in Wayne County, Michigan, has hosted the Arab International Festival every summer from 1995 until 2012. A three-day event that was free and open to the public, the Festival welcomed roughly 250,000 attendees and featured carnival attractions, live entertainment, international food, and merchandise sales. [The panel later agreed that the festival was a "traditional public forum" at which public speech is fully constitutionally protected, rather than private property or even public property that was temporarily exclusively leased by a public organization. -EV]

[T]he Bible Believers came bearing strongly worded t-shirts and banners:

[Chavez] wore a t-shirt with the message, Fear God on the front and Trust Jesus, Repent and Believe in Jesus on the back. Fisher wore a t-shirt with the message, Trust Jesus on the front and Fear God and Give Him Glory on the back, and he carried a banner that said on one side, Only Jesus Christ Can Save You From Sin and Hell, and on the other side it said, Jesus Is the Judge, Therefore, Repent, Be Converted That Your Sins May Be Blotted Out. Other messages conveyed on t-shirts, signs, or banners displayed by the [other Bible Believers] included, among others, Fear God, Trust Jesus, Repent and Believe in Jesus, Prepare to Meet Thy God Amos 4:12, Obey God, Repent, Turn or Burn, Jesus Is the Way, the Truth and the Life. All Others Are Thieves and Robbers, and Islam Is A Religion of Blood and Murder.

One Bible Believer carried a severed pigs head on a stick, which Chavez explained protected the Bible Believers by repelling observers who feared it. Appellants soon began preaching using a megaphone, and a small crowd formed around them almost immediately. [The police eventually told the speakers that megaphone use was forbidden by ordinance, and the speakers stopped; that restriction is not challenged here. -EV] Chavez castigated the crowd for following a pedophile prophet and warned of Gods impending judgment. As this evangelizing continued, the crowd yelled back. At this point, a ribbon-cutting at the opposite end of the Festival occupied a majority of the [Wayne County Sheriff's Office] officers, but one officer watched from the outskirts of the crowd.

As the Bible Believers moved deeper into the Festival, the crowd a good portion of which appeared to be minors continued to gather and yell. Some people started throwing debris including rocks, plastic bottles, garbage, and a milk crate at the Bible Believers. Someone in the crowd also shoved one Bible Believer to the ground. Some WCSO officers detained debris-throwers while other officers hovered at the edges of the crowd. Eventually, after about thirty-five minutes, the Bible Believers temporarily stopped preaching and stood as the crowd harangued them and hurled objects. Several officers, including some mounted units, attempted to quell the crowd.

After about five minutes of standing quietly, the Bible Believers began to move and preach again. As they did so, the cascade of objects intensified. Deputy Chiefs Richardson and Jaafar approached them a few minutes later. Jaafar explained that they could leave and that their safety was in jeopardy because not enough officers were available to control the crowd.

The Bible Believers, however, continued to preach, followed by what had swelled into a large crowd. Richardson and Jaafar then took Chavez aside to speak with him. Richardson noted his concern that Chavez was bleeding from where a piece of debris had cut his face. Richardson explained that he was responsible for policing the entire Festival, that Chavezs conduct was inciting the crowd, and that he would escort the Bible Believers out of the Festival

Link:
Volokh Conspiracy: Sixth Circuit agrees to rehear hecklers veto decision

If The Freedom From Religion Foundation (FFRF), an atheist group, gets its way, it may be handing out controversial pamphlets in several Florida public high schools depicting a lecherous human-like Bible sexually assaulting a young woman.

The pamphlet is entitled: An X-Rated Book: Sex and Obscenity in the Bible," and its cover features a cartoon illustration of a humanized Bible with a face, arms, and legs, reaching under the dress of a screaming woman who is trying to escape.

The FFRF's plans to distribute that and other atheist pamphlets at some Orange County high schools is at the center of a controversial dispute that has pitted school officials promoting appropriate environments for students against the atheist group asserting its First Amendment rights.

The pamphlet includes Biblical passages mentioning sex, nudity and circumcision, excerpts that the FFRF deems "obscene" and is including in its pamphlet to make a point that the Bible also contains explicit material.

I think if you look at the content of that brochure and what is actually in the Bible, and some of the things that are in the Bible in terms of sex and compare that to the cover [of the pamphlet], the cover is pretty tame compared to anything that is in the Bible, FFRF Legal Counsel Andrew Seidel told CNS News. I think the bottom line is, you cant consider any of our materials obscene when compared to the Bible, he said.

On National Religious Freedom Day, which is Jan. 16, the Orange County Public Schools have allowed outside religious groups to passively distribute approved literature, like Bibles, for students to take should they choose. According to reports, FFRF plans to distribute "An X-Rated Book" and other pamphlets in 11 public high schools in Orange County, Florida, next year.

According to a news release posted on its website, the FFRF also plans to distribute other previously banned pamphlets that discuss what the Bible says about abortion and which, according to the school district, assert that God is hateful, arrogant, sexist and cruel." It also plans to make available for students Robert Prices Jesus Is Dead, which the district banned earlier because [t]he claim that Jesus was not crucified or resurrected is age-inappropriate for the maturity levels of many of the students in high school.

Will An X-Rated Book: Sex and Obscenity in the Bible," and other similar titles be available for students in Orange County public high schools this January?

"No, no, no, that's a long way away," says Katherine Marsh, communications director for OCPS. "[The media] have perpetuated this terrible rumor that Satanists are coming in." She added, "It is incorrect to say that at this time this organization has asked for and received clearance to hand out this pamphlet in Orange County Public Schools."

Here's the back story: In 2013, the school district began allowing World Changers of Florida, a Christian group, to distribute Bibles at some of its public high schools on Freedom of Religion Day, according to CNS News. In response, the FFRF announced a plan to begin passing out packets of atheist literature, including An X-Rated Book, to some Orange County public high schools later that year. The atheist group submitted its materials to the Orange County school board for review, as per district rules, and the board banned about half of the literature the group planned to distribute, saying it was inappropriate.

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Will this shocking atheist pamphlet be handed out in some Florida schools?

All-Class Lecture: Political Corruption and the First Amendment
Tim Wu, the Isidor and Seville Suzbacher Professor of Law at Columbia Law School and newly appointed head of the Poliak Center at Columbia Graduate School of Journalism discusses the ...

By: Columbia Journalism School

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All-Class Lecture: Political Corruption and the First Amendment - Video

What Does the First Amendment Mean to You?
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What Does the First Amendment Mean to You? - Video

San Francisco, CA - infoZine - The Electronic Frontier Foundation (EFF), along with reddit and the Internet Archive, filed formal comments with the New York State Department of Financial Services opposing the state's proposed regulations for digital currencies such as Bitcoin. In the letter, EFF argues that on top of damaging privacy and harming innovation, New York's "BitLicense" regulatory scheme also risks infringing on First Amendment rights to freedom of expression and association.

The State of New York is currently considering BitLicense, a sprawling regulatory framework that would mandate licenses for a wide range of companies in the digital currency space. The regulations would force applicants to submit significant personal information to the state, including fingerprints and head-shot photographs. The policy would also require these companies to maintain detailed records about all transactions for 10 years, including identity data of users.

EFF notes that digital currency protocols are used for more than just paymentsthey have expressive and associational uses, too. Bitcoin-like systems are used for organizing and engaging with groups or communities. In addition, Bitcoin block chains frequently contain political speech, such as famous quotes and portraits of prominent historical figures. As currently written, EFF argues, the BitLicense regulations place an unacceptable burden on free speech and association.

"The courts have long recognized that code is speech protected by the First Amendment," EFF Special Counsel Marcia Hofmann said. "At their core, digital currency protocols are code. Attempts to regulate code must include robust protections to ensure constitutionally protected speech is not stifled, and the BitLicense proposal would undermine those First Amendment principles."

On Oct. 15, EFF launched an online activism campaign encouraging Internet users to oppose the BitLicense proposal by submitting comments to the New York State Department of Financial Services.

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EFF, Internet Archive, and Reddit Oppose New York's BitLicense Proposal

Pro-life protestors had planned to put a JumboTron outside the Alamo with abortion images on it, but the City of San Antonio shut down the protest Wednesday morning. Demonstrators said it's a violation of their First Amendment rights.

Protestors have put up a JumboTron with abortion images in other cities already and Love of Truth ministries said they cleared a permit with the City of San Antonio to do so a month ago. It wasn't until Tuesday night that the City said the demonstration violates a sign ordinance.

"Part of the permit, which would have enabled them to put a JumboTron on the plaza, was revoked this morning," said San Antonio Police Chief William McManus.

"If we were going to preform abortion today the city would allow that, cause that's legal, but showing it, somehow they're finding a way to find that against the law," said Mark Harrington, national director of Created Equal that was co-hosting the protest.

Harrington said now his organization has two causes to fight for; the end of abortion and first amendment rights.

"Unpopular speech is the reason the First Amendment was written to begin with. It protects disturbing, unpopular, offensive speech," said Harrington.

Several people visiting the Alamo Wednesday said they had differing opinions on whether the JumboTron should be allowed.

"When people don't have the choice whether to see those images or not, I don't think that's right," said Shannon Thomas who was at the Alamo Wednesday.

"I think they should be allowed to do what they were permitted for, and I think it's just the government trying to squelch anything that has to do with religion, or anything faith based," said Ava Tanner who was also visiting the Alamo.

"I don't necessarily agree with their tactics, but I do believe that to a certain extent it's protected by the First Amendment," said Lyndon Lee, another Alamo visitor.

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San Antonio tells pro-life protestors they can't use JumboTron at Alamo