Category Archives: First Amendment

Banned books: What a new wave of restrictions could mean for students

Titles like "Maus" and "Beloved" are being pulled from libraries across the country amid an uptick in book bans. Here's how that could affect students.

Just the FAQs, USA TODAY

Some call it a watchdog effort to ensure age-appropriate literature is in Indian River County's school libraries.

Others call it book banning, antithetical to the First Amendment tothe U.S. Constitution. Moms for Liberty and another groupchallenging the books claim to support the Constitution

The Indian River County School Board (and others around the country) is stuck in the middle, and Monday night is expected todeal with the book issue again, potentially discussing challengedtitles. The full list and committee recommendations can be found attinyurl.com/IRCSDbooks

At the least it will review recommendations district staff has to ensure inappropriate books arent on school library shelves and accommodate parents who don't necessarily want their children reading about sex, race and LGTBQ issues.

Sadly, its another example like theprotracted COVID mask debates of school systems forced to focus not on student achievement, but hot-button issues that will be used for political purposes in future elections.

Its not that the local Moms for Liberty and We The People groups didnt raise legitimate concerns in October when they reported 28 "unacceptable" books in school libraries containing pornography and/or inappropriate sexual content or innuendos. The list has grown to about 150, school officials said.

Unfortunately, some of the titles on the list of questionable books were not reviewed by district staff beforehand, but ordered in bulk, school officials said.

One book on the list wasAll Boys Arent Blue. A video I saw of a Pennsylvania woman reading to her school board a lurid unpublishable here excerpt from the book convinced me there might be an issue.

Porn in schools?Moms for Liberty targets books in Indian River County schools

Amazon describes the book as Bothaprimer for teens eager to be allies as well as a reassuring testimony for young queer men of color … (covering) topics such as gender identity, toxic masculinity, brotherhood, family, structural marginalization, consent, and Black joy … George M. Johnson's emotionally frank style of writing will appeal directly to young adults."

The book was on the shelvesof an elementary school in Pennsylvania and Vero Beach High School. Neither copyhad been checked out, school officials said.

The book was pulled from the shelf at VBHS, said Richard Myhre, assistant superintendent of curriculum & instruction for the Indian River County School District. Myhre, at the behest of the school board, set up a committee of librarians and reading specialists to review challenged books and make recommendations to the board about whether they should be pulled.

I found and perused a few books on the list. One was pretty risqu in my opinionnot appropriate at most levels. Others on the list seemed fine for high school students. I saw one elementary school kids could read.

More: Indian River County's chapter of Moms For Liberty speaks at meeting

More: Moms for Liberty: Despite nonpartisan claims, activists a political force in 2022

A few others on the list I recognized as being used by high school Advanced Placement courses, for optional summer reading or college classes.

One, The Bluest Eye, by Pulitzer Prize-winning Toni Morrison, I heard mentioned on a recent podcast hosted by Nick Gillespie, editor at large at Reason, the libertarian magazine of "free minds and free markets." His guest was Corey DeAngelis, an advocate for school choice and parental freedom.

Gillespie mentioneda Republican activist in Virginia who'd objected to her child reading Morrisons book, a harsh look at child abuse and sexual molestation and very racially charged, in an AP course.

I think the parent should have the right to (object), Gillespie said, but shouldnt we behaving the argument about do you want your honors student kid not to encounter difficult literature?

Theres an anti-intellectualism that creeps into a lot of school choice stuff. … (like) I dont want my kid to be exposed to whatever it is that makes them or me upset.

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More: What's Moms for Liberty? A look at its roots, its philosophy and its mission

DeAngelis noted that all families are different.

Were forcing everybody who is going to fundamentally disagree about how they want their kids raised into a one-size-fits-all system, he said. Thats why school choice is the best solution for these curriculum disagreements going forward.

At the end of the day when it comes to a one-size-fits-all, government-run school system, youre going to have people that are upset with whatever the final product might be.

Gillespie and DeAngelis are right. Florida has robust school choice. Indian River County has an array of free charter schools and private ones accepting state-provided school vouchers for students at various income levels.

And under Superintendent David Moores leadership, Indian River schools have created their own signature programs and parents may choose what schools their children attend.

More change is on the horizon.

At the Indian River boards meeting 6 p.m. Monday, Myhre is expected to make several proposals. Among them:

As for the challenged books, Myhre said, libraries are protected by the First Amendment. Thus, he said, challenges about most non-obscene books might be moot.

Whats the difference between obscenity, as defined in Florida statutes, and pornography?

Obscenity refers to a narrow category of pornography that violates contemporary community standards and has no serious literary, artistic, political or scientific value, David L. Hudson Jr., a Belmont University law professor and First Amendment expert wrote.

Floridastatutes makeit a third-degree felonyto show obscenity to a minor.

Myhre and the committee are aware of that. As an Army veteran, though, he said he put his life on the line to defend the Constitution and its First Amendment.

I know we will not make everyone happy, he said. But any recommendation will be a solid recommendation. Some parents will disagree with it.

Everyone has a different standard, a different point of view which is why some call it book banning and others call it constructive criticism.

In the end, the Constitution and its First Amendment must prevail.

This column reflects the opinion of Laurence Reisman. Contact him via email at larry.reisman@tcpalm.com, phone at 772-978-2223, Facebook.com/larryreisman or Twitter @LaurenceReisman

Originally posted here:
Book ban? Just concerned parents? Indian River schools face 1st Amendment issue | Opinion - TCPalm

Its not often that sports and politics collide. But that happened last week, when the Oakwood Adventist Academy (OAA) varsity basketball team forfeited a game that could have put them in competition for the state championship.

The decision by OAA, precipitated by an Alabama High School Athletic Association (AHSAA) ruling, drew the attention of Gov. Kay Ivey. And the governor has sided with the OAA basketball team not the association.

OAA, based in Huntsville, is affiliated with the Seventh-day Adventist Church, a Christian denomination I know something about because Ive been an active member since I was 7. We SDAs are known for a few things that fall outside of mainstream Christian doctrines and practices.

For example, we are taught not to eat pork, shrimp and other animal foods described in the Old Testament of the Bible as unclean. Our doctrines also teach against drinking alcohol and smoking cigarettes.

But most notably, we go to church on Saturdays, honoring what many call the Jewish Sabbath as a weekly holy day meaning sundown Friday to sundown Saturday.

Historically, for most SDAs, that has meant no secular activities during those 24 hours. No work, except for those who work for the church or are first responders (medical professionals, police officers, fire fighters, etc.). No play, meaning no secular music concerts, movies, television shows, and other activities that can be indulged in during the other six days.

No play also includes no competitive sports.

Notice the qualifiers I used: historically and most. Some SDAs deviate, based on preference or principle. But most still adhere to the basic idea of Sabbath-keeping.

So when the OAA basketball team learned its game was scheduled for this past Saturday at 4:30 p.m. before sundown the team decided to put its faith over a chance to be one of Alabamas best high school teams. That got Iveys attention especially, perhaps, because there was another option.

Not for the OAA team. But for the AHSAA.

The AHSAA could have allowed the team and its opponent to swap schedules with the teams slotted for 7:30 p.m. According to my OAA sources, the affected teams were willing to do just that. So why wasnt the AHSAA? Its representatives wont say.

Apparently, Gov. Ivey was wondering the same thing. So she wrote the AHSAA a letter.

I hope youll understand why I was most disturbed to read about Oakwoods alleged treatment at the AHSAAs basketball tournament, the governor wrote. This episode raises some very pressing questions, not only for me but for public officials and citizens across our great State.

Among other things, Ivey asked who at the AHSAA was responsible for this decision and if it violated any AHSAA policy. She also wants to know this circumstance can be prevented from happening again.

The governor seems to want accountability and change. Well see if she gets what she wants.

Ivey also wrote a letter to the OAA team, expressing her support and inviting them to meet with her at the state capitol. My cynical side says that Ivey wants a photo op with young black men affiliated with a historically black institution (Oakwood University, my alma mater).

But I also recognized that this may be about more than politics for Ivey. Of the 2,930 voters who cast a ballot at the Oakwood University precinct in 2020, 83 percent voted a straight Democratic ticket. President Biden beat Donald Trump by 67 percent. Former Democratic Senator Doug Jones beat current Republican Senator Tommy Tuberville by 64 percent.

No matter how magnanimous and supportive Ivey is of the OAA team, shes not likely to get votes from that precinct or most black voters. In fact, I suspect most will respond to her efforts the way she does to Biden in one of her current commercials: Bless her heart. And then they will vote for Democrats anyway.

Either way, whether because of politics or principle, I like what Ivey has done. Not because Im an SDA, but because I believe in the First Amendment and in a society that seeks to accommodate those of all faiths and no faith.

Gov. Ivey and I dont agree on most things. But it appears we do agree on this.

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Opinion | Oakwood Adventist Academy basketball is a real First Amendment case - alreporter.com

In the flurry of activity that always ensues when the Washington State Legislature is in session, one bill has flown largely under the radar, yet its implications are enormous.

Backed by Gov. Jay Inslee, Senate Bill 5483 would make it a gross misdemeanor to make false statements about the results of an election.

This bill didnt originate in a vacuum. The text opens with a statement that states whose electoral processes follow Washingtons model, including mail voting and same-day registration, are secure in their elections and claims to the contrary are false. It goes on to describe (in somewhat subjective terms) the events of Jan. 6, 2021 at the U.S. Capitol, and lays the blame for those squarely on statements by then-President Donald Trump. It adds that a similar, though smaller-scale, event took place in Olympia at the state capitol and the governors residence.

And while the bills authors admit that there may be some minor hiccups regarding that pesky First Amendment, they seem to believe that it will pass Constitutional muster, because it just has to. After all, as the bill openly states, no less than democracy itself is at stake.

Is it? First of all, our country has functioned more or less continuously since the late 18th century. Surely in all that time, people have spoken negative things, perhaps even untruths, about their electoral opponents at least once or twice. Yet here we are, still democratizing away.

Second, the purpose of the First Amendment is not to preserve democracy anyway. Its purpose is to ensure that people living in that democracy may say, think, print, pray and protest over anything they jolly well please and the government may not prevent it. Saving democracy is not listed as one of its purposes.

While there have been some restrictions on free speech that have passed the First Amendment hurdle, they are few and very limited, like the famous and often misquoted Brandenburg vs. Ohio case, involving falsely shouting fire in a crowded theater. But deliberately inciting panic in a confined space is a far cry (so to speak) from expressing an opinion in a public forum about an election.

The key word in this bill is false. (Thats not a subtle point; the word appears 28 times in a six-page document.) The bills authors rely on the idea that there is a fundamental difference between a dissenting opinion and a false statement, one of which is protected and the other not.

But, as a famous judge once asked, what is truth? Is it defined by the official government record? Or by the statements of government officials? Or by popular opinion on social media, or by news reports? If history is written by the winners, then the people in power (or with the largest voice) will always be the ones who decide whats true and whats false.

This is where the naked partisanship of this bill really shines forth. All nine of the bills original sponsors are Democrats, as is the governor, who initially proposed it. Democrats currently hold sizable majorities in both houses of the Legislature, and that party has held the governorship for 37 years, longer than many voters have been alive.

This party affiliation is by no means irrelevant. Many Washingtonians remember the gubernatorial election of 2004, in which Republican Dino Rossi was certified the winner, until two subsequent Democrat-driven recounts ended with his opponent, Christine Gregoire, winning by a handful of votes with questionable origins. Although no irregularities were ever proven, plenty of people believed and still believe that Gregoires victory was dishonestly gained. SB 5483 would make it a crime to say so. It would also make it illegal to question any future victories. Thats a heck of an advantage for one party.

SB 5483s sponsors insist that its provisions are crucial to the continuation of our democracy. But if a democracy cannot survive without criminalizing dissent, is it a democracy at all?

Editorial board

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Fact or fiction? Who's to say? - Columbia Basin Herald

Caring for Others in Uncaring Times: A Conversation with MSNBC Anchor Richard Lui

Richard Lui, MSNBC anchor and author of the new book Enough About Me, will speak at the Cronkite Schools First Amendment Forum on Tuesday, March 15 at 6 p.m. Lui will participate in fireside chat with Dr. David Coon, associate dean of research initiatives, support, and engagement and professor at the Edson School of Nursing and Health Innovation and Julia Wallace, Frank Russell Chair in the Business of Journalism at the Cronkite School. Adrienne Fairwell, the general manager of Arizona PBS, will introduce the panel.

Lui became the first Asian American male to anchor a daily cable news program in 2007. Then, his father was diagnosed with dementia, and his life was changed forever. Lui will provide insights from this journey and how it helped him become a better journalist and human being.

The first 50 students to arrive will receive a FREE, autographed copy of the book as well. This event is sponsored by the Cronkite School and the Edson School of Nursing and Health Innovation.

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Caring for Others in Uncaring Times: A Conversation with MSNBC Anchor Richard Lui - Walter Cronkite School of Journalism and Mass Communication

A bill sponsored by local State Representative Shane Baker is getting some attention due to its attempt to have churches and religious organizations recognized as essential in cases of emergency.

House Bill 43 moved out of committee Thursday and is eligible to be heard by the entire House at any time.

Besides Baker, the bill currently has 52 co-sponsors, and Baker said that members of the State Government Committee who werent sponsors voted to send it to the House.

We have the votes to pass it in the House, and I have no doubt the Senate would have the votes to pass it there, Baker said. The question is, do we understand the need for it to make this a priority to move this forward.

Baker described the bill as one that ensures churches and religious organizations are treated in the same way as other essential organizations during declarations of emergency.

That would give churches the authority to choose whether to close or remain open during situations such as during a pandemic.

It was written in response to Governor Andy Beshears executive orders during the early days of the COVID-19 pandemic to shut down all non-essential entities in an effort to prevent people from congregating and spreading the coronavirus.

The governors executive order specified houses of worship, churches were to be shut down, Baker said. There was also a list that was released that talked about essential entities, which included home improvement centers, grocery stores, gas stations, banks liquor stores were included in there, oddly enough but churches were shut down.

Baker said that was a violation of First Amendment rights the U.S. Constitutional amendment that states government cannot make laws respecting an establishment of religion, or prohibiting the free exercise thereof.

The First Amendment obviously protects our religious liberties, and its a clear violation to shut the church down, he said.

He added that there are a number of functions churches fulfill in society that many consider essential. Not only does it offer a place for people to gather for worship, but it also offers a lot of ways to meet needs, such as providing ministry, food and clothing to those in need.

He also said the church provided a needed way for many elderly residents widows and widowers to socialize, where it might be the only time during the week that they leave their homes.

During this session, we have talked a lot about mental health and some of the issues that people are facing, many of them as a result of people being isolated. That is all due to, in part, things being shut down. Not just the church, but other things as well. We want to make sure that God-given right is protected so this provides a clear framework for moving forward, Baker said.

Baker said he felt there were ways that churches have adapted to the pandemic that ensure that people can enter the building and remain distanced and safe from others.

With our church, we had empty rows and space for people to spread out. I know some churches went to multiple services to allow people to stagger their times and to be able to spread out. Initially, we were dealing with the unknown. We didnt know what to expect. And everyone wants to be safe and everyone wants to keep other people safe, so I think that people are responsible to make those decisions on their own, he said.

Baker also pointed to other services that were considered essential that he had qualms about the aforementioned liquor stores and abortion clinics, for two.

He said that abortions are considered elective procedures, and noted that at the same time hospitals and doctors were encouraged to postpone other elective procedures postponements that may have prolonged health issues that needed to be corrected.

A similar bill did not get a vote during last years shorter session, but Baker hopes it will be heard this time around. He said this is a bill he has worked on since before he was even sworn into office, working on the first drafts of it in November 2020.

We may not, and hopefully will not, face this situation where it becomes necessary to rely on this law in the near future. But we know these things will be challenged again somewhere down the road, and when we have the opportunity, we have to be proactive and address some of these issues to put those boundaries in place, he said.

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Baker-sponsored religion bill moves out of committee - Commonwealth Journal's History

So holds Judge Edward Chen in yesterday's Deschamps v. City of Sausalito.The factual backstory:

Mr. Deschamps asserts that he has claims pursuant to 42 U.S.C. 1983. Specifically, he asserts violations of the First Amendment (his "right to associate with pets"), the Fourth Amendment, the Eighth Amendment, and the Fourteenth Amendments. In the complaint, Mr. Deschamps explains that he has brought these claims because "[t]hey gave us 3 days to move to the tennis courts, and now they are taking away the structure I need to keep my cats." The TRO application sheds additional light on Mr. Deschamps's claims. In the TRO application, he states that he will not be allowed to use his "tent structure" and instead will be issued a "standard one" that is 8x6 feet. He asserts that the standard tent is inadequate because "[t]here is not enough space for my cats" and "they are made out [of] really thin material" that his "cats will rip up easily." In contrast, his own tent "is made [up of] strong reinforced canvas[] my cants can't tear up. [If] my cats escape before they acclimate to the tennis courts, they will go astray and may die by getting hit by vehicles or eaten by coyotes."

Say what you will about Mr. Deschamps' plight, and about how government officials should deal with homeless encampments, I agree that the First Amendment isn't implicated here.

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"There Is No Right to Associate with Pets Under the First Amendment" - Reason

By Richard Labunski

Updated: 1 day ago Published: 1 day ago

FILE Former Alaska Gov. Sarah Palin reacts as she leaves a courthouse in New York, Monday, Feb. 14, 2022. Palin lost her libel lawsuit against The New York Times on Tuesday, Feb. 15, 2022, when a jury rejected her claim that the newspaper maliciously damaged her reputation by erroneously linking her campaign rhetoric to a mass shooting. (AP Photo/Seth Wenig, File)

Sarah Palin may have lost the first round in her libel suit against the New York Times after the jury concluded that the former vice-presidential candidate failed to prove that the newspaper acted with actual malice when it published an editorial linking her political action committee to the 2011 shooting of 19 people, including former Rep. Gabrielle Giffords, in Tucson, Arizona.

But when Palin appeals, her case has the potential to do more than reverse the jurys verdict. It could fundamentally change the First Amendment by giving conservative judges what they have wanted for decades: the chance to overturn the Supreme Courts landmark decision in New York Times v. Sullivan (1964) and its actual-malice standard. That would make it significantly easier for public officials and public figures to sue those who make inaccurate statements about them.

There was an unusual development in the Palin case. While the jury was deliberating, Judge Jed Rakoff announced that if the jury found for Palin, he would overturn that ruling. Several jurors learned of the judges decision before the verdict was rendered. The court of appeals and the Supreme Court will likely consider whether that improperly influenced the jury.

Nevertheless, that will not be the key issue in Palins appeal. Of much greater significance is an almost 40-year-old Supreme Court case involving a publications negative product review.

In Bose Corp. v. Consumers Union (1984), the court held that to protect the First Amendment, appellate courts have an obligation to closely scrutinize a trial courts judgment when it rules against defendants in libel cases. Like Palin, Bose Corp. was a public figure. The trial judge ruled that the company was able to prove actual malice when its new speaker system was criticized in the magazine. The court of appeals reversed, and the Supreme Court agreed with the appellate court.

Central to the Bose case and Palins appeal is the Courts interpretation of Section 52(a) of the Federal Rules of Civil Procedure. The Bose decision requires appellate courts to conduct a de novo review in cases involving the First Amendment to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression. An appellate court must, in effect, retry the case by conducting an independent evaluation of the evidence to see if it justifies an exception to the usually robust protection the First Amendment provides for almost all forms of speech.

This goes against the way courts usually function. Appellate judges do not see witnesses in person to evaluate their credibility. They dont have access to all the evidence the jury considered. They read briefs from the attorneys and hear oral arguments. Federal Rule 52(a) tries to prevent appellate judges from second-guessing the trial courts evaluation of the facts by prohibiting the reversal of the lower courts ruling unless it is clearly erroneous, a difficult standard to meet.

The Supreme Court, in the Bose case, held that the First Amendment is too important to be subject to the clearly erroneous standard, and it noted that Rule 52(a) does not forbid a review of the entire trial record. But it did not answer a question of great importance: Can appellate courts conduct their own review when the media organization wins at trial, as in the Palin case? Some legal scholars have argued that it is unfair to the plaintiff if such a comprehensive review takes place only if the defendant loses.

The Bose case is mainly about protecting the First Amendment. Justice John Paul Stevens wrote that the de novo requirement reflects a deeply held conviction that judges and particularly members of this court must exercise such review in order to preserve the precious liberties established and ordained by the Constitution. But he did not say that appellate courts can conduct an independent review only when the plaintiff wins at the trial level.

The First Amendment is clearly established in the Constitution, but the right to be compensated for harm to reputation caused by false and defamatory statements predates the Constitution. It has long been considered a necessary exception to First Amendment rights.

Justices Clarence Thomas and Neil Gorsuch have strongly argued that the Sullivan precedent should be reversed, and other conservative members of the court may agree. Justice Thomas wrote, New York Times (v. Sullivan) and the courts decisions extending it were policy-driven decisions masquerading as constitutional law. Instead of simply applying the First Amendment as it was understood by the people who ratified it, the court fashioned its own federal rule(s) by balancing the competing values at stake in defamation suits.

Here are two steps the Supreme Court may take in the Palin case:

First, the court can conclude that the actual-malice standard which requires a plaintiff to show by clear and convincing evidence that the defendant either knew the statement was false or recklessly disregarded whether it was false or not is so difficult to prove that it lets purveyors of false and defamatory speech to go unpunished and those harmed to be uncompensated. The court could devise a standard that is closer to the negligence requirement that most states impose on private persons bringing libel suits, which is much easier to prove than actual malice.

And second, after creating a new standard for public officials and public figures, the court may conduct a de novo review using the ambiguity of Bose as precedent and conclude that Palin met the new standard and grant her damages, thus avoiding a return to Judge Rakoffs courtroom for another trial.

It may take several years for the appellate decisions to be issued in the Palin case, but it seems that the Sullivan precedent and the First Amendment are in danger.

Richard Labunski, Ph.D., J.D., is a retired journalism professor and author of James Madison and the Struggle for the Bill of Rights.

The views expressed here are the writers and are not necessarily endorsed by the Anchorage Daily News, which welcomes a broad range of viewpoints. To submit a piece for consideration, email commentary(at)adn.com. Send submissions shorter than 200 words to letters@adn.com or click here to submit via any web browser. Read our full guidelines for letters and commentaries here.

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OPINION: Palin's lawsuit still poses a threat to the First Amendment - Anchorage Daily News

The U.S. Supreme Court has agreed to hear a First Amendment free speech and religious freedom case with potential major implications for all public employers.

In Kennedy v. Bremerton School District, the Court will determine whether a public school district unconstitutionally violated a former high school football coachs First Amendment free speech and free exercise rights when it suspended his employment after he defied the districts repeated directives to stop praying at mid-field following his teams games.

The case involves multiple significant First Amendment questions for public employers, including the scope of what constitutes government speech and whether public employers may rely on the Establishment Clause to prohibit otherwise private and protected religious expression. The Courts decision to hear the case, particularly with its conservative super-majority, portends the Court broadly curtailing public employers ability to restrict religious expression in the workplace.

Kennedy v. Bremerton School District

A. Factual background

As we discussed in our previous commentary, Kennedy, a practicing Christian, began his career as a football coach in 2008 at Bremerton High School, a public school in Washington state. He initially instituted a practice of praying alone at mid-field that evolved to include simple prayers with student athletes and finally, to longer motivational speeches at midfield after the games with religious content.

In September 2015, the school district ordered Kennedy to stop praying so that the district did not violate the Establishment Clause, and it offered him several accommodations to enable him to pray privately. Kennedy declined these accommodations, insisting that his religious activities must take place at mid-field after the game in full public view. He took to multiple social media sites to announce publicly his non-compliance. Thereafter, the district placed Kennedy on administrative leave, and he was not recommended for re-hire during the annual renewal process.

Kennedy did not apply for a 2016 coaching position. In August 2016, Kennedy sued the school district in federal district court, alleging the district violated his rights under the First Amendment and Title VII, and sought injunctive relief in the form of reinstatement.

B. SCOTUS declines to hear Kennedys bid for injunctive relief

The case has a long procedural history. Most notably, in 2019, the Supreme Court previously declined to hear Kennedys appeal of the Ninth Circuits refusal to grant him injunctive relief in the form of reinstatement during the pendency of his lawsuit. Justice Alito, however, wrote a statement regarding that denial, joined by Justices Thomas, Gorsuch and Kavanaugh, in which he criticized the Ninth Circuit, saying its understanding of the free speech rights of public-school teachers was both troubling and something that may justify review by the Court in the future.

C. The Ninth Circuit sides with school district, affirms dismissal of case

On the merits, in March 2020, the district court granted the school districts motion for summary judgment, holding that the risk of constitutional liability associated with Kennedys religious conduct was the sole reason the district ultimately suspended him. The lower court further held that the school districts actions were justified due to the risk of an Establishment Clause violation if the school district allowed Kennedy to continue with his religious conduct.

The Ninth Circuit affirmed in March 2021. As to Kennedys free speech claim, the Ninth Circuit held that Kennedys prayers occurred within the scope of his official duties as a public employee and, therefore, under Supreme Court precedent, the First Amendment did not protect his speech. The Ninth Circuit specifically noted the following facts in support of its ruling:

Taken together, the Ninth Circuit ruled Kennedys religious conduct occurred in the course of his public duties. The Ninth Circuit further held that the school district had a compelling state interest in avoiding an Establishment Clause violation, therefore justifying regulation of Kennedys speech even if private and protected.

With respect to Kennedys free exercise claim, the Ninth Circuit held that the school district had the same compelling state interest in avoiding a violation of the Establishment Clause, therefore satisfying the onerous strict scrutiny standard to justify the school districts admitted impingement on Kennedys free exercise rights. Specifically, in large part because Kennedy refused any accommodations from the school district that would allow it to avoid violating the Establishment Clause, the court ruled the districts directives to stop praying at mid-field were narrowly tailored to the compelling state interest of avoiding a violation of the Establishment Clause.

What this means for you

All public employers should pay close attention to how the Court rules in Kennedy. The case involves multiple significant First Amendment questions with potential larger implications for all public employers.

The first question involves the scope of what constitutes government speech, i.e., whether Kennedys religious speech came as a public employee, with no First Amendment protection, or as a private citizen, with ordinary First Amendment protections. In general, determining whether a public employees speech is protected under the First Amendment requires a fact-intensive balancing test, with particular focus on whether the speech occurred within the scope of the public employees official duties. The Courts decision to accept this case suggests that at least four, and likely more, members of the Courts conservative super-majority want to ensure that public employers understand and respect their employees rights to religious expression in the workplace. The Court may take this opportunity to broaden how and why quasi-public speech in the workplace like Kennedys prayers are protected under the First Amendment. At minimum, public employers should expect the Court to clarify when a public employees speech is private and, therefore, subject to ordinary First Amendment protection.

The second question confronting the Court is whether, assuming Kennedys speech is private and protected, the Establishment Clause nonetheless compels public schools to prohibit such religious expression. This inquiry will require the Court to weigh the relationship between the Establishment Clause, the Free Exercise Clause and the Free Speech Clause. The Court has trended towards affirming greater (i.e., ordinary) First Amendment free speech protection in recent terms. The Court also seems unlikely to relegate an individuals free exercise rights to the governments interest in avoiding an Establishment Clause violation except in extremely narrow circumstances. At minimum, public employers should expect the Court to clarify the circumstances when the Establishment Clause compels public employers to act against their employees faith that may otherwise constitute religious discrimination.

It is unclear whether the Court will answer these questions narrowly or provide broader guidance. Justice Alitos earlier statement, joined by three conservative justices, suggests the Courts new conservative supermajority is poised to curtail public employers ability to restrict religious expression in the workplace more broadly than just on the facts of Kennedys case.

[View source.]

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Scotus to Assess the Scope of Public Employers' First Amendment Obligations - JD Supra

Arizona state Rep. John Kavanagh knows that being a cop is hard. He spent 20 years as a Port Authority Police Officer before decamping for sunnier climes, so hes always down to back the blue. And so hes sponsored a bill that would make cops lives easier AHEM promote public safety by banning bystanders from recording police from anything closer than eight feet.

Under HB2319 (as amended) which passed out of the Arizona House Appropriations Committee yesterday 7-5 on party lines, it would be illegal to knowingly make a video recording of law enforcement activity, including the handling of an emotionally disturbed person, if the person making the video recording does not have the permission of a law enforcement officer and is within eight feet of where the law enforcement activity is occurring.

The law would not affect the right of the person interacting directly with law enforcement to record, and violation would be a mere petty offense, unless the recorder fails to comply with a verbal warning.

It distracts the cop against the person they are making enforcement against, Kavanagh told the Arizona Mirror, recounting a time he had lost focusduring an arrest and failed to see the suspect dump a large quantity of drugs.

Evidence can be lost, the cop can be assaulted, Kavanagh said, without specifying exactly how a citizen holding up an iPhone is going to cause a cop to be assaulted.

I think you get a better picture from 15 feet away, he added. You get the full scene.

As the Electronic Freedom Foundation points out,the First, Third,Fifth,Seventh,Eleventh Circuits have upheld the right to record police at work, as has the Ninth Circuit which affirmed the right to film police 26 years ago. But Kavanagh has an answer for that, and it is abortion.

Well, obviously.

See, the Supreme Court upheld an eight-foot buffer zone for abortion clinic protestors in 2000, so obviously that means that Arizona can restrict First Amendment activity to stop cops from getting distracted.

I think this fully conforms with constitutionality and weighs officer safety with the citizens right, the publics right, to see law enforcement officers in action, Kavanagh told the AP. And it looks like the state may be about to test that hypothesis, as the law proceeds to the Rules Committee, before heading to the wider chamber for a vote.

Ex-cop lawmaker wants to restrict recording videos of cops [AZ Mirror]House panel OKs revised ban on videotaping police [AP]

Liz Dyelives in Baltimore where she writes about law and politics.

See the article here:
Arizona Looks To Protect Cops From That Pesky First Amendment - Above the Law

A lawsuit over First Amendment rights was settled by Haskell Indian Nations University after Jared Nally, former editor-in-chief of The Indian Leader, sued the school and previous university President Robert Graham. Haskell is required to pay $40,000 in legal fees, but Nally awaits a Supreme Court decision which may alter the cases outcome.

In October 2020, Nally was issued a directive that impeded his rights as a student journalist at Haskells The Indian Leader. The directive instructed Nally to comply with various practices, including not recording anyone at Haskell without notifying them first. Kansas is a one-party consent state.

This directive was issued by Graham, and although it was supposed to be repealed after six weeks, it was active for around 90 days, according to this FIRE article. FIRE, or the Foundation for Individual Rights in Education, is a nonprofit organization that helps students fight for their rights without a financial burden.

Nally was issued the directive after he sent an email to the Lawrence Police Department, asking them for a statement on a staff members death.

Receiving the directive that I got in October was a clear abridgment of free speech on our campus, and it was an example of our student newspapers relationship with the administration, Nally said. If that went unchecked, then we would endanger the future of free press at our university.

According to Haskells Code of Student Conduct, students free speech was only allowed if they were abiding by the universitys Circle Values, which stands for community, integrity and respect, among other standards.

And so, my case was one where the critical coverage on our university wasnt considered respectful, Nally said.

Nally and FIRE officially filed a lawsuit against Graham and Haskell in March 2021, but before that, they started with forms of advocacy, such as writing letters to the university. They first wrote about the directive that Nally received, as well as writing about some of the universitys policies that needed change.

Graham was removed from his position as president after the lawsuit was filed, according to FIRE.

Since Haskell is a federally operated university, they were represented by federal attorneys. This added some challenges to the case.

For Haskell, it was the Department of Justice who was representing the university, so federal attorneys, which adds a couple of interesting procedural wrinkles to the case, said Patton. Otherwise, for FIRE, it was a standard case of trying to come in and defend the rights of this student and these student journalists to keep doing what they need to do to be a voice on campus.

According to Katlyn Patton, who is a staff attorney for FIRE and worked on Nallys case, if the Supreme Court were to say that a First Amendment retaliation under Bivens is appropriate and rules in favor of Boule, FIRE would be able to go back to the district court with the claim against Graham.

Nally and The Indian Leader made a claim against Graham in his individual capacity for damages as the directive he made interfered with the papers operation and harmed them. This claim was initially dismissed because its harder to make that claim with the challenge of it being a federal defendant, according to Patton.

Jared was subjected to the directive for months, really kind of recklessly because Graham said he intended to resend it and just forgot to for several months, Patton said. To recover from that lengthy harm, we were seeking damages. The claim against Graham sought damages against him in his individual capacity for the retaliation he engaged in and that is the only claim that would be subject to an appeal and impacted by the Supreme Court case.

As of now, all of the claims that Nally and The Indian Leader made against the University and other federal officials in their official capacities have been settled through a consent decree.

This could change, though, after the Supreme Court makes their ruling on the Egbert v. Boule case, which should be decided by the first week of July.

This upcoming Supreme Court case could challenge the 1971 case of Bivens v. Six Unknown Named Agents ruling, and this would be ideal for Nallys claim against Graham for damages.

In the Bivens case, the ruling was that federal officials cant be sued for damages regarding the deprivation of a constitutional right.

So, for now, most of the legal work is done until that decision is made.

Our position is, it kind of doesnt make sense to continue arguing it at this stage when that case is pending and should be decided by the end of the term, Patton said.

The outcome so far has been in favor of Nally and The Indian Leader. Haskell Indian Nations University was required to pay $40,000 to FIRE for attorneys fees. Some changes have been made to increase transparency about the funding the paper is getting and when they are supposed to get it, and this was established in a consent decree.

Further, some changes were made to The Indian Leaders Plan of Operations to give students more of a say on who their advisor is. The language was also changed in the Code of Student Conduct.

The university agreed to change the Code of Student Conduct so we dont have any language that would allow for the abridgment of free speech rights, Nally said.

Because of the award settlement for attorneys fees, Nally is under no legal expense for this case.

I think thats the amazing part of nonprofits and being able to help students or other entities out in a situation where we already have the financial burden of education, that we might not have the resources to advocate for our rights, and just because we dont have resources doesnt make that an opportunity for schools to take advantage of that, Nally said.

Nallys path ahead

Nally graduated in December with his bachelors degree in Indigenous and American Indian Studies, but he knew it was important to fix the issue at hand rather than just push through to graduation.

We matriculate through our college careers, and I think its really hard for every instance to go checked, where I think a lot of students who had that experience or may have been censored or retaliated against, kind of just think that its just one more year. If I just get through it, Im done, Nally said. They might not necessarily think about what their actions could do for the next generations of students from kind of stopping that kind of mentality or treatment that might be fostered at the university.

Nally has received immense support throughout the process of this lawsuit and legal situation. He mentioned that one of his greatest supporters was Rhonda LeValdo, who was their newspaper faculty advisor.

I think Rhonda LeValdo, who was our newspaper faculty advisor, played a huge part in supporting the students and the paper throughout this whole process, Nally said. I think she did a great job when we were doing critical coverage about understanding what free press rights were, and the importance of the work that we were doing.

He also mentioned that he has received support from the Native American Journalist Association, the Student Press Law Center and other journalism organizations.

Patton said that its important for student journalists to have their constitutional rights for two main reasons: the benefit of the campus community and society, and the benefit of student journalists themselves.

Even in the recent Mahanoy case from the Supreme Court, Justice [Stephen] Breyer talked about how campuses are incubators for democracy, and students should be learning how to be a journalist, Patton said. Student journalists are on campus, theres a lot of times where theres big campus stories that are important, and local media maybe isnt interested or national media wouldnt be interested, but those stories really need to be told. Campus administrators, like Graham, really need to be held accountable for their actions.

Since graduation, Nally took on a freelance job as a guest editor for Kansas! Magazine and has plans to continue going to school.

I have plans to continue on to grad school, and hopefully gain some skills that are important for our tribal community and government and future sovereignty, Nally said. So, it might not necessarily be graduate school for journalism, but its still going to be a skill set that allows me to work within our community.

Read more from the original source:
Lawsuit settled between former Indian Leader editor-in-chief and Haskell Indian Nations University - The University Daily Kansan