Category Archives: First Amendment

On June 29, 2022, the United States Court of Appeals for the Third Circuit upheld the preliminary injunction of the United States District Court rescinding discipline placed on Port Authority employees who wore Black Lives Matter masks in violation of Port Authority policy.

Around April 2020, early in the COVID-19 pandemic, Port Authority of Allegheny County (Port Authority) required all uniformed employees to wear face masks to work. Some of the masks worn by the employees included social and political messages, and in July 2020, Port Authority prohibited face masks inscribed with social and political messages, including statements supporting the Black Lives Matter protests, statements supporting the police, or statements opposing the then-ongoing mask mandates. Decision at p. 4. When several employees continued to wear masks expressing support for Black Lives Matter, Port Authority disciplined the employees for violating policy and, in September 2020, imposed additional mask restrictions, limiting the types of masks that employees were required to wear. Id.

The employees, together with their union, Amalgamated Transit Union Local 85, sued Port Authority, arguing that the policy violated the employees First Amendment rights. The United States District Court for the Western District of Pennsylvania then entered a preliminary injunction, rescinding Port Authoritys discipline of the employees and stopping Port Authority from enforcing the policy against Black Lives Matter masks. Port Authority appealed to the United States Court of Appeals for the Third Circuit, asking for the appellate court to reverse the District Courts granting of a preliminary injunction.

In a unanimous decision, the U.S. Court of Appeals upheld the District Courts preliminary injunction, determining that, at this early stage of the litigation, Port Authority was unlikely to succeed on the argument that it did not violate their employees First Amendment rights.

Government Employee Speech

It is true that government employees receive less First Amendment protection than private citizens. As the U.S. Court of Appeals noted in its decision, public employees historically had no right to object to conditions placed upon the terms of employment including those which restricted the exercise of constitutional rights. Decision at pg. 8 (citing Connick v. Myers, 461 U.S. 138, 143 (1983)). However, with the risk that the restrictions of public employment may chill the speech of government employees due to the fear of being fired, courts have since adopted a balancing test, weighing an employees interest in speaking against a government employers interest in quelling that speech. Id. A chilling effect occurs where a policy punishes protected speech before it is actually spoken. This has the effect of chilling individuals from making their constitutionally protected speech due to fear of repercussions.

That said, a government employees speech, however, must meet two threshold criteria in order to qualify for the interest balancing analysis: (1) an employee must speak as a private citizen rather than as someone exercising their official duties and (2) the employees must be speaking on a matter of public concern, rather than on their personal interests. Id. (citing Garcetti v. Ceballos, 547 U.S. 410, 421 (2006); Borden v. Sch. Dist. of Twp. of E. Brunswick, 523 F.3d 153, 168 (3d Cir. 2008).

Upon review, the U.S. Court of Appeals determined that the employees speech met these criteria. Their speech was not pursuant to their official duties and their speech was certainly on matters of public concern.

Employee Discipline

The Court considered two issues related to the expressive speech: (1) Port Authoritys discipline of the employees, and (2) whether Port Authoritys mask policy had a chilling effect on employee speech. These two issues are decided on different standards.

The first issue, the employee discipline, applies the analysis in Pickering v. Board of Education, 391 U.S. 563 (1968). In Pickering, a court considering a restriction of employee speech must balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees. Pickering, 391 U.S. at 568.

In this analysis, the Court determined that the employees had a strong interest in making the speech, citing precedent which found that speech involving government impropriety occupies the highest rung of First Amendment protection. Decision at pg. 11 (citing Munroe v. Cent. Bucks Sch. Dist., 805 F.3d 454, 472 (3rd Cir. 2015)). On the other hand, the Court determined that Port Authority could only demonstrate a minimal risk that the speech would cause workplace disruptions, only citing one employee complaint, electronic messages expressing differing opinions on the Black Lives Matter movement, and three race-related incidents which all preceded, and were unrelated to, the mask policy. Decision at pg. 11. The Court also noted that Port Authority itself expressed support of the Black Lives Matter movement after the July policy was put into place, it had previously expressed support for African American heritage celebrations, and has, in the past, allowed employees to wear political buttons and hats despite these buttons and hats being a violation of uniform policy. Id.

Thus, applying the balancing analysis, the Court determined that Port Authority was not likely to succeed on the merits given its minimal showing of risk.

The Masking Policy

When considering whether a policy is likely to have a chilling effect, courts apply the standard laid out in United States v. National Treasury Employees Union (NTEU), 513 U.S. 454 (1995).

Under this standard, when a policy chills potential speech before it happens . The Governments burden is greater than with respect to an isolated disciplinary action. NTEU, 513 U.S. at 468. This analysis does not only require a court to examine a specific speech in question, but the broad range of present and future expression that the rule chills and the interests of present and future speakers and audiences. Decision at pg. 10 (citing NTEU, 513 U.S. at 468).

This standard requires that the government, and in this case, Port Authority, bear the burden of showing that the impact that the employee speech has on the actual operation of the government outweighs the employees interest in the speech. Decision at pg. 12. In order to make this showing, the government must show (1) that there is a real, and not merely conjectural harm, and (2) its policy was narrowly tailored to address these real harms. Id (citing NTEU, 513 U.S. at 475).

Upon review, the Court determined that Port Authority had shown a real harm, as the views expressed on the masks led to employees engaging in heated arguments, with management becoming involved because of an employee complaint of a Black Lives Matter mask. Decision at pg. 12. The protests and riots that followed the Black Lives Matter demonstrations made Port Authority concerned that severe disruption would likely follow mask-related controversy. Id. Further, Port Authority also noted that other political speech had disrupted Port Authoritys operations in the past. Id at pg. 13. However, the Court also noted that employees have worn political buttons in the past which were not disruptive to Port Authority operations. Further, the court also noted that employee dissension due to the expressive speech made by Port Authority did not disrupt Port Authority operations in the past. Id. Thus, while the Court determined that the disruption posed by controversial masks was more than merely conjectural, it also found that Port Authority could not show that the broad range of expressions that the mask policy banned was meant to stop actual harm. Id.

Second, the Court determined that Port Authority did not meet its burden of showing that the policy was narrowly tailored to the preventing the disruption to their operations. Id at pgs. 16-17. Specifically, the Court determined that the policy was overbroad, in that it banned a wide variety of expressive social-issue and political speech that employees have long engaged without causing disruption. Id at 14. The Court also determined that the policy was underinclusive, in that it forbade expressive political speech on masks, but did not restrict verbal or written speech, which the court notes, also has the potential for disruption. Id. at 15.

The Court, therefore, determined that Port Authority did not meet its burden showing that its policy was narrowly tailored to the harm that it identified. The facts, the Court wrote, suggest that prevailing political conditions, rather than employees mode of speech, dictates how contentious employees workplace political debates will be. Port Authority makes no showing that preventing mask-related disputes will redress the disruption it fees. Id. Even balancing this with the factors in Port Authoritys favor still weighed against Port Authority.

Thus, the Court determined that Port Authority was unlikely to prevail on the merits as both the discipline of the employees and the policys chilling effect on the speech were likely in violation of the First Amendment. The Court of Appeals went on to review the other factors necessary to decide a preliminary injunction and affirmed the District Courts order.

It is important to note that the Court of Appeals decision was narrow to the facts at hand, leaving open the door that [a]nother policy, another message, a uniform requirement, or another set of interests may be different. Decision at pg. 22. Nevertheless, the decision of the Court of Appeals reiterates the importance of public employees First Amendment rights and the standards that government employers must meet in order to craft policies necessary for their operation while also recognizing employee rights.

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Third Circuit Upholds Preliminary Injunction in Government Employee First Amendment Masking Case - JD Supra

Book sellers, publishers, and libraries scored a courtroom victory on Tuesday as a Virginia judge rejected the application of the states nearly 75-year-old obscenity law to two books that upset Republican politicians in Virginia Beach.

Under the terms of the abstruse book-banning law, citizens are allowed to effectively sue individual books (and other forms of media), petition a court to have such books adjudicated as legally obscene, and then have their distribution deemed criminal. The production, sale, or possession of obscene items is a crime in the Old Dominion State.

Upon the filing of a petition pursuant to this article, the court in term or in vacation shall forthwith examine the book alleged to be obscene, the obscenity determination law says. If the court find no probable cause to believe the book obscene, the judge thereof shall dismiss the petition; but if the court find probable cause to believe the book obscene, the judge thereof shall issue an order to show cause why the book should not be adjudicated obscene.

The Circuit Court for the City of Virginia Beach rejected petitions aimed at removing two books from the state: (1) Gender Queer by Maia Kobabe; and (2) A Court of Mist and Fury by Sarah J. K. Maas. The first book is a memoir; the second is young adult fantasy fiction.

We are pleased with the outcome of todays proceedings, Senior Staff Attorney for the ACLU of Virginia Matt Callahan said after the ruling. The First Amendment protects literary expression, even when some people find portions of the works difficult or objectionable. All people should be able to choose what they wish to read.

The books have been targeted by conservatives due to their explicit depictions of sex, which they say is not acceptable content for younger readers.

Though the obscenity petitioning law has not been used in decades, State Delegate Tim Anderson, an attorney, filed the two lawsuits on behalf of onetime GOP congressional candidate and current tattoo shop owner Tommy Altman, arguing that parents should have more control over what their children read and that the sexually explicit scenes in the books were inappropriate for young readers.

The lawsuits were filed amidst the broader backdrop of the current conservative culture war against LGBTQ rights and ideas. Anderson, however, says the thematic content of the two books wasnt the problem.

This was never never about trying to ban gay literature or trans literature, the attorney told USA Today. This was simply just saying these have really sexual explicit content and its not appropriate for kids.

In late May, Judge Pamela Baskervill issued a ruling that found probable cause to believe the books were obscene for unrestricted viewing by minors and ordered the books authors and publishers to argue against that determination.

The ACLU and the ACLU of Virginia represented four local booksellers as well as various book selling and free expression groups in motions to dismiss the proceedings. Nationwide book-selling chain Barnes & Noble also enlisted a First Amendment attorney to combat the obscenity petitions. Other free expression and First Amendment groups rallied to the defense of the books in court as well.

In her Tuesday ruling, Baskervill, who is retired but heard the case due to a conflict of interest from every other judge in the area, found the law to be facially invalid because it allows unconstitutional prior restraint that anticipates allowing the government to police speech before it even occurs. The judge also cited jurisdictional reasons for dismissing the obscenity petitions, saying the state law in question doesnt actually countenance giving any court the authority to determine whether books are obscene for minors specifically, a point the ACLU pushed in press releases and court filings.

Baskervill also expressed practical concerns about enforcing the law against people who sold or lended a book deemed obscene.

It is not the courts place to legislate, the judge wrote.

The ACLU praised the courts ruling on Twitter:

Anderson anticipates appealing the ruling to a higher court, he told the Virginia Mercury.

[image via David Livingston/Getty Images]

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Citing the First Amendment, Va. Judge Rejects Obscenity Proceedings Against Sexually Explicit LGBTQ Graphic Novel and Young Adult Romance Book - Law...

The trial in a civil suit between a Yakima business owner and city officials he claimed tried to punish him for opposing downtown plaza plans began Monday.

The dispute dates to November 2013, when a fire code inspector showed up at plaintiff Mark Petersons West Yakima Avenue furniture store hours after he and other business owners criticized former City Manager Tony ORourke over the downtown master plan, which included a plaza at the parking lot by Millennium Plaza, according to court documents.

At the inspection, fire code inspector Anthony Doan found that a basement showrooms ceiling at H&H Furniture violated fire codes and ordered it fixed within about 90 days. Doan tried to conduct follow-up inspections of the property but was told that Peterson was not present, and he would have to reschedule when Peterson was there, court documents said.

The city then filed charges alleging that Peterson refused entry to building inspectors, but the charges were later dropped by prosecutors because Doan did not specify the scope of the inspection, court documents said.

Peterson filed a lawsuit against the city, ORourke, former Deputy Fire Chief Mark Soptich and Doan in 2017, alleging that the claim of fire code violations at H&H Furniture were in retaliation for Petersons free speech, according to court documents.

Peterson also claims the charges brought against him for refusing entry to building inspectors were malicious and that city officials named in the lawsuit engaged in civil conspiracy, court documents said.

The defendants in the case deny Petersons claims, saying the fire inspection was part of the citys standard fire inspection program and that Peterson was prosecuted because he refused to allow a follow-up inspection, court documents said.

Peterson initially filed the lawsuit in Yakima County Superior Court, and the case was later transferred to U.S. District Court.

Voters and the Yakima City Council rejected the plaza project in 2018.

Opening statements were given before a jury Monday, and Petersons attorneys began questioning witnesses. Peterson is represented by attorneys Casey Bruner, Matthew Crotty and Matthew Mensik. The city and city officials are represented by Robert Christie and co-counsel.

The jury trial continues this week before Judge Thomas O. Rice at the William O. Douglas Federal Building at 25 S. Third St. in Yakima

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Trial kicks off in First Amendment lawsuit against the city of Yakima - Yakima Herald-Republic

[This piece has been published in Restoring America to highlight how regulating social media companies as common carriers could violate the First Amendment.]

AEI recently published a thought-provoking report by Professor Richard A. Epstein addressing censorship of conservative viewpoints online. Building on initial comments offered last year in the Wall Street Journal, Epstein identifies the problem as a systemic progressive bias among dominant social media companies, coupled with steep barriers to entry that reduce competition as a potential disciplining force in the short term. The solution, he posits, is a common carriage regime that would prevent digital platforms from abusing their positions in ways that distort public debate.

I am sympathetic to Epsteins concerns. As Ive written elsewhere, social media is a volatile battleground, and any gatekeepers perception of particular content is likely to be informed at least subconsciously by ones priors. While evidence of systemic bias remains unclear, high-profile anecdotal missteps (such as the Hunter Biden laptop story) certainly reinforce conservative grievances. But its not clear to me that social media platforms fit the common carriage paradigm, and even if they do, common carriage treatment likely violates the First Amendment.

Epstein argues that common carriage developed as a solution to natural monopolies. Setting aside whether Facebook, Twitter, and the like exercise this kind of market power, Christopher Yoo has shown that this historical justification for common carriage treatment is muddled at best. Market power is neither a necessary nor sufficient condition for common carriage treatment. For example, until 1992, cable providers often held exclusive franchises but were statutorily exempt from common carriage treatment, while wireless companies were saddled with common carriage obligations in a competitive market.

Surveying the regulatory history, the District of Columbia Circuit Court defined common carriers as companies that hold themselves out to serve the public indiscriminately, without making individual business decisions regarding with whom to deal and on what terms. Under this definition, common carriage is a poor fit for social media. Unlike a telephone company or the postal service, which carry communications between users without regard to the underlying message, social media companies terms of service explicitly reserve the right to treat customers differently by moderating individual user content to offer users a personalized, curated experience.

This curation function raises a more significant obstacle to common carrier treatment, however justified: the First Amendment. In Miami Herald v. Tornillo, the court recognized that companies engaged in the publication and dissemination of speech possess a First Amendment right of editorial control that protects their judgments about what content to carry and how. Tornillo struck down a Florida right-of-reply statute that required newspapers to carry political candidates responses to critical editorials. Like Epstein, Florida argued that compelled access to the platform was necessary to prevent the platforms bias from distorting public debate. But the court found this insufficient to overcome the newspapers First Amendment rights.

The court has not recognized a common carriage exception to this right of editorial control. If anything, Tornillo itself implies the opposite. The court recognized that the newspaper had significant market power over dissemination of political speech, and barriers to entry made alternative distribution unlikely. But it rejected Floridas argument that this economic reality justified infringing the newspapers rights. Epstein correctly notes that earlier cases rejected First Amendment challenges to newspapers judgments about employee hiring and to anticompetitive withholding of stories from competitors. But the newspaper still decided what those employees said in print and which stories it would carry.

And this makes sense, as curation is how these platforms compete for user attention. Different platforms draw lines in different places, thereby cultivating different types of communities that appeal to different groups. Facebook aggressively removes pornographic and violent content, Twitter is more permissible but puts questionable content behind warning labels, and other platforms are free-for-all cesspools. Through millions of micro-level editorial judgments each day, platforms reveal their values, views, and community standards. In this way, the First Amendment not only protects the companies freedom of expression but also allows for richer and more dynamic competition among platforms.

We should be wary of vesting this editorial power in the government instead. Under the state action doctrine, the First Amendment prohibits only governmental abridgment of speech. Legislatures and courts have a poor track record when taking it upon themselves to decide which private spaces are public enough to be saddled with government-like duties. The fairness doctrine illustrated how government-compelled access to platforms could become a tool to reward political allies and punish enemies while chilling the very speech the doctrine was supposed to protect. First Amendment doctrine recognizes private editorial control rights not as an unalloyed good but as the lesser of two evils. In the long run, private regulation of censorship is less threatening than government regulation of censorship. Common carriage is a helpful tool to discipline less competitive markets, but it becomes more complicated when applied to markets for speech.

This article originally appeared in the AEIdeas blog and is reprinted with kind permission from the American Enterprise Institute.

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Social media, common carriage, and the First Amendment - Washington Examiner

Yeshiva University students discuss the importance of an LGBTQ club on campus.

Yeshiva University in New York City has asked the Supreme Court of the United States to step in and protect it from a court order requiring the school to allow an LGBTQ club on campus on the grounds that complying would violate the schools religious beliefs. At issue in the case is not only the scope of religious freedom under the First Amendment, but also the criteria for an institution being considered religious for legal purposes.

Yeshiva is an Orthodox Jewish private research university in New York which consists of four undergraduate schools, a law school, and a graduate school offering several programs. When undergraduate students sought to establish a Pride Alliance group on campus, the school refused on the basis that such a group would violate the schools religious tenets.

A group of students and alumni filed a complaint against the school with the New York City Commission on Human Rights alleging anti-LGBTQ discrimination in violation of New York law. Yeshiva defended its actions by arguing that as a religious institution it was exempt from the citys human rights law.

The case proceeded to litigation, and New York Supreme Court JusticeLynn Kotler ruled against Yeshiva on the basis that when the school was incorporated, it was not organized not as a religious institution. Kotler wrote that Yeshivas organizing documents do not expressly indicate that Yeshiva has a religious purpose, and called the schools arguments against the club overblown. Kotler added that whether a school with a religious affiliation is exempt from human rights laws depends on the schools own organizing documents. Yeshiva had a chance to declare itself a religious school, and it opted not to do so, explained Kotler.

Kotler then directed the school to allow the schools Pride Alliance full equal accommodations, advantages, facilities, and privileges afforded to all other student groups at Yeshiva University.

Lawyers for the Becket Fund for Religious Liberty, representing Yeshiva, filed an emergency applicationwith SCOTUS for a stay pending appeal on Monday.

When secular authorities try to tell Yeshiva University that it is not religious, you know something has gone terribly wrong, Becket VP and senior counsel Eric Baxter said in a statement on the case. The First Amendment protects Yeshivas right to practice its faith. We are asking the Supreme Court to correct this obvious error.

The emergency application was filed before Justice Sonia Sotomayor (who is the justice assigned to the Second Circuit). Petitioners are asking the high court to blockKotlers ruling from going into effect and more.

Alternatively, the filing said, the Court should treat this application as a petition for a writ of certiorari, grant the writ, and set the appeal for immediate briefing and argument.

In its petition, Yeshiva argued that the students know the school is a religious institution, and know that the decision to exclude the Pride Alliance was a religious decision. In fact, Plaintiffs admit that they want to force the creation of a Yeshiva Pride Alliance precisely to alter Yeshivas religious environment, the school wrote.

The petitioner school described itself as the worlds premier Torah-based institution of higher education, and pointed out that All Yeshiva undergraduate students are required to engage in intense religious studies, with many receiving up to four and a half hours of Talmud instruction each day. Further, the school operates in a faith-based manner with separate mens and womens campuses, and religiously based dress and behavior codes. Yeshiva has determined, based on consultation with its Roshei Yeshivawho opine on Jewish law for Jews all over the worldthat an official Pride Alliance club, as described by Plaintiffs and as understood by the culture at large, would be inconsistent with Yeshivas religious environment and Torah values, said the school.

Yeshiva went on to quote George Washington in its argument that the case is an example of religious freedom gone terribly wrong:

In 1790, President George Washington wrote to the Jewish community in Newport, Rhode Island, of his wish that the Children of the Stock of Abraham would continue to enjoy the goodwill of their fellow citizens, such that each could sit in safety under his own vine and figtree, and there shall be none to make him afraid. National Archives, From George Washington to the Hebrew Congregation in Newport, Rhode Island (Aug. 18, 1790), https://perma.cc/55Q7-JZ6K. Yet when the secular authorities of New York purport to overrule the religious authorities at Yeshivaand when the civil courts insist the First Amendment has nothing to say about the mattersomething has gone terribly wrong.

Yeshivas petition not only asks the justices to stay the lower courts ruling, but also asks that it overrule Employment Division v. Smith the 1990 ruling authored by the late Justice Antonin Scalia which held that the State of Oregon could withhold employment benefits for employees who violated state drug laws by ingesting Peyote during a religious ceremony.

The justices have already granted certiorari in another somewhat similar case in which a Christian website designer claims she is being forced by the Colorado Anti-Discrimination Act to support same-sex marriage.

Yeshivas petition comes weeks after Justice Samuel Alito spoke publicly in Rome, Italy about the dangers of weakening protections for religious institutions in an increasingly secular society.

The Torah guides everything that we do at Yeshivafrom how we educate students to how we run our dining halls to how we organize our campus,Yeshiva University President Ari Berman said in a statement. We care deeply for and welcome all our students, including our LGBTQ students, and continue to be engaged in a productive dialogue with our Rabbis, faculty and students on how we apply our Torah values to create an inclusive campus environment.We only ask the government to allow us thefreedom to apply the Torah in accordance with our values.

[Image via Fox 5/screengrab]

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Yeshiva University Asks SCOTUS to Step in and Support Its Refusal to Allow LGBTQ Club on Campus - Law & Crime

The story of America is the story of the individual and the protection of the individual from government, from the powerful, from those who know better than we do.

Our country was shaped by those who knew the feeling of powerlessness in the face of an oppressive government. Who, as individuals even banding together in common cause against the British government and ruled by a king with near dictatorial powers, felt helpless to control their own destinies.

They resolved that, after we became a nation, the American people would not be subject to dominating treatment from a government of their own creation. And so, we have the Bill of Rights. And what the Bill of Rights does in part is deny government or powerful people the ability to use their power to compel the individual American to conform to arbitrary social standards.

We have the Constitution written in 1787 that establishes the method of government and the Bill of Rights passed by Congress in 1789 and ratified by the states in 1791 to limit the ability of that government to control the individual, to make the individual conform to standards that are against their beliefs.

The Federalists, who played a large part in writing the Constitution, were confronted by the anti-Federalists who felt that there needed to be a listing of enumerated rightsfreedoms and protections for the individual. When the ratification of the Constitution bogged down, Congress passed 12 such enumerated rights for the states to consider.

The Federalists felt that the Constitution would protect the rights without listing them, but the anti-Federalist felt that to make assurance doubly sure (to quote MacBeth), they needed to be listed. The states ratified 10 of them, which became the first 10 amendments to the Constitution, known as the Bill of Rights.

There are reasons why we have these constitutional safeguards. Take our First Amendment wording on freedom of religion; Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.

The purpose of that clause was to protect the practice of whatever religion a citizen wanted, without fear of punishment or retribution. We learned in grade school that the Puritans fled to the American continent because their religious practices were censured in England because it differed from the state religion, which was the Church of England.

Once in America, the Puritans were free to practice their religion in peace, and they were then also free to condemn those who had a different religion from theirs. Roger Williams, even though a Puritan minister, was banned from Massachusetts because he preached what to the Puritans was heresy. He founded the colony of Rhode Island, which thereafter allowed the free practice of religion.

In Virginia in 1617 the penalty for not attending Church of England services was a week of slavery to the colony. A second offense was a month, a third a year.

The Bill of Rights was adopted by the states in 1791, but it did not necessarily apply to all the states. In Connecticut, the official religion was the Congregationalist Church, which was granted tax money from the state and whose members became the elite of Connecticut.

In 1801 a congregation of Baptists in Danbury, Connecticut, wrote to newly elected President Jefferson to express their concerns that they were being treated as second class citizens What religious privileges we enjoy (as a minor part of the state) we enjoy as favors granted, and not as inalienable rights.

Jefferson replied: Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature would 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between Church and State.

When we object to certain portions of our enumerated freedoms, which form the basis of laws with which we may disagree, such as what some call the War on Christianity, look to history to explain why they are there.

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Montana Viewpoint: Freedom of religion, the why and the how - Missoula Current

In January 2022, FIRE launched a mobile billboard advertising campaign that criss-crossed Boston to call out Emerson Colleges attempts to censor and squelch free expression on campus.

by Graham Piro

Emerson Colleges search for a new president is underway as interim President William Gilligans time as leader of the private Boston college winds down. Among the priorities for the new president listed in a prospectus published on the schools presidential search website is the understanding that free expression of ideas is a non-negotiable value. As the internet saying goes: Big, if true.

The five page document lays out the criteria for a new president who understands both the value of higher education and the power of communication and the arts to shape and influence our world. As one of several requirements, the new president must understand that Underpinning the Colleges academic core is a set of non-negotiable values including . . . [a]ppreciation for diverse ideas and the free expression of them.

This requirement hits all the right notes. And if Emerson wants to play to its tune, it can get a head start by ameliorating the colleges reprehensible treatment of the campus chapter of Turning Point USA. Readers of FIREs Newsdesk will be well aware of how Emersons treatment of TPUSA contravenes its own policies promising students the right to participate in the open exchange of ideas and freedom of expression, as well as its pledge that the first amendment [sic] of the US Constitution is of high importance to the college.

With the new semester about to begin, members of TPUSA told FIRE that Emersons department of Student Engagement and Leadership has informed the group that it cannot attend a student organizations fair because the group is still without a faculty advisor. TPUSA has tried, but been unable, to secure a faculty advisor in the wake of controversy surrounding the groups expression on campus.

The controversy began in October of 2021, when Emerson investigated the campus chapter of TPUSA for distributing stickers on campus with the phrase China Kinda Sus, a criticism of the Chinese government. Despite determining that TPUSA did not intend to target anyone other than Chinas government, the universitys conduct board suspended the group for creating a hostile, intimidating or offensive working, living or learning environment. An administrator subsequently rejected TPUSAs appeal.

FIRE pulled out all the stops to publicize the colleges treatment of TPUSA. But Emerson outdid itself once again and derecognized TPUSA because the group was unable to secure a faculty advisorwhich came of little surprise after Emersons administration publicly condemned the groups speech. Going above and beyond to censor your own students to protect the reputation of a foreign government earned Emerson a spot on FIREs 2021 list of the 10 worst colleges for free speech.

Emersons prioritization of free expression in its search for a new president is an encouraging sign, to be sure. In other areas, the college has signaled that it will take its commitments to student rights, along with its own legal obligations, more seriously. In a separate incident, the college clarified that an orientation event intended for self-identified students of color is open to all new first time students.

Going above and beyond to censor your own students to protect the reputation of a foreign government earned Emerson a spot on FIREs 2021 list of the 10 worst colleges for free speech.

In this instance, an Emerson event was initially described as an opportunity for self-identified students of color to connect. FIRE noticed the potential for segregation on campus, and wrote two letters to Emerson about it. The college quietly changed the language, and the current description of the event clarifies that it is open to all new first time students while still being aimed at self-identified students of color. As weve written before, colleges and universities may tailor events to meet specific students needs and encourage members of specific student communities to attend. But these institutions cannot ban students from events on the basis of race.

Emersons apparent agreement that they should not racially segregate their educational programming, as well as its stated intent to pick a president who understands the value of free expression and diverse ideas, are steps in the right direction. But its track record over the past year, particularly in its treatment of TPUSA, casts doubt on the strength of its commitment to free expression. One thing is for sure: FIRE will continue to keep a keen eye on Emerson and pressure the school to follow through on its promises to its students and its legal obligations.

FIRE defends the rights of students and faculty members no matter their views at public and private universities and colleges in the United States. If you are a student or a faculty member facing investigation or punishment for your speech, submit your case to FIRE today. If youre faculty member at a public college or university, call the Faculty Legal Defense Fund 24-hour hotline at 254-500-FLDF (3533).

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Emerson says new president must appreciate 'diverse ideas' and 'free expression.' Its treatment of TPUSA says otherwise. - Foundation for Individual...

Dumpster Day is an Opportunity for Virginians to Throw Away Vegas Attempts to Cut Police Funding, Restrict Access to Reproductive Healthcare, & Keep Prescription Drug Costs High for Virginia Seniors

Richmond, VA Do you have large items that cant go in your normal trash collection, asked aTweetsent yesterday from the Prince William County GOP.

Are they policy plans that wouldban abortion nationwide, defund and bash law enforcement, and raise prescription drug prices for Virginias seniors?

If yes, Virginians can join the Prince Willian County GOP this Saturday to take out those trash policies!

(RealTweetfrom the PWC GOP campaign account)

Yesli Vega who was described by a local news anchor as a far-right candidate who is notoriously anti-abortion cheeredthe Supreme Courts draft opinion to overturn Roe as an amazing victory, thendoubtedthe likelihood that women who are raped could become pregnant. Most recently, it wasuncoveredthat Vega supports a nationwide ban on abortion evenin cases wherethe life of the mother is at risk. (Vega believes God not a doctor or healthcare provider should solely decide whether a mother should live).

Vega explicitly vowed that if she were elected to the U.S. House of Representatives she wouldvoteto REPEAL the Inflation Reduction Act (IRA). The IRA will lower prescription drug costs for Virginias seniors by finally giving Medicare the power to negotiate drug prices, capping the out-of-pocket cost of prescription drugs at $2,000 for Virginia seniors, and capping the cost of insulin to $35 per month for Virginias Medicare beneficiaries.

As a supervisor for Prince William County, Yesli Vega, a former police officer,votedthreeseparatetimes against local police funding. Additionally, Vega has based federal law enforcement after the legal search of former President Trumps Mar-a-Lago estate bycallingthe Bureau CORRUPT and likening the FBI to the DEEP STATE. Vega has also downplayed the events of January 6, 2021, as sheclaimedthe rioters who bloodied and beat law enforcement officers who protected the Capitol as a group of Americans exercising their First Amendment rights.

Its clear Yesli Vegas policy plans belong in the trash.

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3 Yesli Vega Policies that Belong in the Trash - Democratic Party of Virginia

NORFOLK, Va. (AP) A judge in Virginia dismissed a lawsuit Tuesday that had sought to declare two books as obscene for children and to restrict their distribution to minors, including by booksellers and libraries.

The books in question were Gender Queer: A Memoir by Maia Kobabe and A Court of Mist and Fury by Sarah J. Maas.

Both books describe or illustrate sexual acts that prompted the lawsuit. In a petition to the court, Tommy Altman, a Virginia Beach tattoo shop owner and former Republican congressional candidate, said the depictions were inappropriate for children.

Altman asked the court to issue an order under state law against distributing, selling or loaning the books to minors. The suit was filed in April and dismissed Tuesday before it could proceed to trial.

Circuit Court Judge Pamela S. Baskervill struck it down on jurisdictional grounds, citing state law as well as the U.S. Constitution.

For example, Baskervill wrote that Virginia law doesnt give her the specific authority to determine whether the books are obscene for minors.

The judge also wrote that restricting the books distribution would authorize prior restraint of speech and violate the First Amendment. The judge also described concerns about prosecuting someone who didnt know they were selling or loaning books that were deemed to be obscene.

The judges order comes at a time when book challenges and bans have surged across the U.S. to levels not seen in decades. Virginia has been on the frontlines, with public school curricula and books serving as a major prong for Republican Glenn Youngkins successful run for governor last year.

Author and publisher groups hailed the judges decision.

Maria A. Pallante, president and CEO of the Association of American Publishers, said Tuesday that it was an unequivocal victory for the free speech rights of readers, authors, publishers, booksellers and libraries.

Eden Heilman, legal director for the American Civil Liberties Union of Virginia, said access to diverse perspectives is a huge part of our democracy, and any efforts to thwart that are really concerning.

Heilman, who represented independent booksellers and other parties in the suit, said her organization will continue to fight such legal efforts.

Many of the targeted books have focused on sexuality, gender identity or race. Kobabes Gender Queer, a graphic novel that contains explicit illustrations of oral sex and masturbation, has served as a particular flashpoint.

The Virginia Beach school board removed the book from school libraries earlier this year, The Virginian-Pilot reported. Schools in Fairfax County, in northern Virginia, also briefly removed it last year before it was reinstated. Loudoun County Public Schools chose to pull the book.

In his petition against the fantasy book Court of Mist and Fury, Altman said it contains pages of extreme sexual conduct not suitable for children as young as 10 years old.

In his petition against Gender Queer, Altman cited content that illustrates two minors engaged in sexual intercourse, among other actions.

Jeff Trexler, an attorney for the author of Gender Queer, pointed out that Altman was running for Congress when he filed the suit. Altman lost in a crowded Republican primary.

This isnt 200 pages of people from various gender identities, having sex and nothing else, Trexler said. Its an award-winning work as a literary memoir and as a graphic novel. Its been relevant to lots of people in terms of understanding themselves and their children

Tim Anderson, Altmans attorney, said the lawsuit was never never about trying to ban gay literature or trans literature.

This was simply just saying these (books) have really sexual explicit content and its not appropriate for kids, Anderson said.

Anderson said the suits intent was changing a state law that determines what is obscene for both children and adults alike. Altman wanted a carve out that deems whats obscene for juveniles specifically.

Anderson, who is also a state lawmaker, said Altman is considering his options following the judges order. He said one way forward could be a ratings system for books like there are for video games and movies.

Fundamentally, what were trying to do is get to a point where parents are more in the drivers seat of what their children are consuming, Anderson said.

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Associated Press National Writer Hillel Italie contributed to this report

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Judge tosses suit that tried to deem books obscene for kids - The Associated Press

Lachlan Murdoch, CEO of Fox Corporation and co-chair of News Corp., attends the annual Allen & Company Sun Valley Conference in 2019 in Sun Valley, Idaho.

Photo: Drew Angerer/Getty Images

The suit thats gotten the most attention was filed against Fox last year by Dominion Voting Systems, which was falsely accused bythe networks hosts and guests of rigging the election to deprive then-President Donald Trump of victory. The Dominion suit a similar onehas been filed by another voting company, Smartmatic seeks $1.6 billion in damages and has advanced into discovery, with Fox hosts Sean Hannity, Tucker Carlson, and Jeanine Pirro reportedly being deposed.

Foxs defense is that its broadcasts are protected under the First Amendment, which has consistently been interpreted by courts as allowing news organizations to publish falsehoods about public figures so long as its not done knowingly and there is not a reckless disregard for the truth. Fox contends it wasnt endorsing conspiracy theories about the election, rather it was just allowing people to voice the lies, including its hosts. However, a Delaware judge,denying the networks motion to dismiss the suit last year, noted that the Court can infer that Fox intended to avoid the truth and ruled that the case should proceed.

The curious thing is that last week Lachlan Murdoch, the CEO of Fox Corp. and son of the networks founder, Rupert Murdoch, filed a defamation suit in Australia against a small independent news site called Crikey that published an article describing the Murdoch family as unindicted co-conspirators in the Jan. 6 insurrection and the election lies that preceded it. The legal complaint contends that the Crikey article, as well as social media posts about it, caused Lachlan Murdoch to be gravely injured in his character, in his personal reputation, and his professional reputation.

The offendingarticleby Crikey political editor Bernard Keane was about the evidence presented at the Jan. 6 hearings in Washington, D.C., and focused mostly on Trumps culpability. But its penultimate paragraph noted that Fox had peddled the lie of the stolen election and played down Trumps role in the insurrection. The final line stated that if Trump is indicted, the Murdochs and their slew of poisonous Fox News commentators are the unindicted co-conspirators of this continuing crisis.

That line would not be remarkable if it appeared in America; its a statement that is easily defensible under the First Amendment. While Murdoch would have nearly zero grounds for suing in the U.S., Australia does not have anything like the First Amendment. Instead, it has a woeful reputation as the defamation capital of the world.

The upshot is that Fox is trying to have its legal cake and eat it too.

The company argues in the U.S. that it should not be punished for broadcasting lies about Dominion and the 2020 election, while seeking punishment in Australia for what it claims are lies about its role in the election. Whats especially galling is that Fox is trying to avoid any punishment for the significant harm that Dominion has already documented including threats made against its employees while Murdoch is seeking damages for substantial hurt, distress and embarrassment allegedly caused by an article in a publication whose modest readership has for years heard far worse about Murdoch and his even more loathed father.

Its a pretty incredible contrast, noted Angelo Carusone, the president of Media Matters, a nonprofit media watchdog. It exposes their inconsistency and hypocrisy.

The reasons for filing the suit against Crikey are obvious as well as a mystery.

Murdochs lawyers, taking advantage of Australias strict libel laws, contacted Crikey a day after the article was published, and the outlet took it down. But the article waslater returned to the site amid an exchange of unfriendly letters between Murdochs lawyers and Crikey. This culminated last week with Crikey publishing the correspondence and challenging Murdoch to carry out his threat of suing which, in short order,he did. We welcome Lachlan Murdochs writ, Crikey responded.

On the one hand, the suit makes sense because Murdoch could win in Australian courts. The expense of going through the legal processis considerable on an objective scale but a pittance for a billionaire like him. Crikey, on the other hand, is a tiny publication and has had to launch a fundraising campaign to support its legal efforts.

But lawsuits of this sort are unpredictable because of the discovery process you never know what might be found once opposing counsel has access to emails and other forms of internal communication. Thats one of the reasons Fox settled a suit that had been filed against it by the family of Seth Rich, the late staffer from the Democratic National Committee whom Fox falsely accused of leaking emails to WikiLeaks during the 2016 election: The company clearly did not want hungry lawyers looking through its confidential correspondence.

Nobody draws the dots to the Murdochs, Carusone noted. The Murdochs run the company. You cannot make the case that they dont run the company. There is no way those things are taking place without their tacit or explicit consent. Crikey will have the capacity to dig into it.

The Dominion lawsuit has already opened the potential for disclosures about the Murdochs involvement in the publication of conspiracy theories about the 2020 election. The New York Times reported last week that Rupert and Lachlan, in addition to the hosts they employ, may be deposed. The Murdochs traditionally claim that they dont make day-to-day decisions on programming and would never tell their hosts what to say or not to say. This claim, for which there is already evidence to the contrary, such as text messages between Lachlan Murdoch and Tucker Carlson, can now come under direct scrutiny in Australia if Crikey can assemble the resources to go the distance against themost powerful media family in the world.

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Murdochs Expose Their Hypocrisy in Lawsuits Over Fox News - The Intercept