Category Archives: First Amendment

The EARN IT Act, recently cleared for floor consideration by the Senate Judiciary Committee, remains a contentious bill, primarily over concerns that it might dissuade tech providers from using encryption. But amid ongoing debate about Section 230 and the role of tech platforms in our public discourse, legislation like EARN IT could, if paired with carefully crafted procedural protections, offer a model for how Congress can address bipartisan concerns about child sexual abuse material (CSAM) and other illegal content online.

Debates about Section 230 and the liability shield it grants to digital platforms typically center either on how to make platforms remove hate speech, misinformation and other disfavored content, or how to prevent them from censoring certain political speech, particularly that of conservatives. But such discussions fundamentally misunderstand what Section 230 was meant to do: define how best to assign liability for content-moderation decisions in order to achieve the ideal balance of expression and potentially harmful content.

No moderation system will ever be perfect. Some harmful content will always exist. But there is no reason to presume that the status quo, rooted in assumptions about the online environment from more than two decades ago, necessarily strike that balance in a way that makes sense today.

To the extent that the law currently allows harms that exceed the benefits of expression, it should be adjusted to deter those harms if doing so can be achieved at sufficiently low cost. Nearly everyone would agree that harmful content should be removed if it can be done without any effect on lawful expression. Thus, the question is finding the right tradeoff: one that would deter harms but not impose such massive legal liability as to drive online platforms out of business. This can be done, but it requires thoughtful consideration.

The EARN IT Act traces the edges of the problem but, without a truly holistic approach, it could do more harm than good. While Section 230 is largely beneficial, its grant of near-total immunity prevents the legal system from adapting to new developments. To be sure, as platforms discover new forms of harm, there are pressures that guide their behavior, such as concerns about image and the ability to grow and maintain a user base. But without legal consequences for making unreasonably bad decisions, such pressures may not provide enough incentive to find optimal solutions.

Rather than a blanket grant of legal immunity, Section 230s protections should be conditioned on platforms demonstrating reasonable behavior. That is to say, an online service provider should have a duty of care to reasonably moderate illegal content. Implicit in the idea of reasonable moderation is the understanding that platforms will not be able to deal with all bad content.

It could be the case that platforms already operate as reasonably as would bepossible, within the bounds of economic efficiency. But determining that should involve at least some oversight from a neutral court.

Analyzing whether a platform has behaved reasonably could include examining its use of encryption, as the EARN IT Act contemplates. Given that many malicious actors seek to steal user data, it may be completely reasonable to encrypt communications. But there may also be marginal cases where a platform unreasonably allowed encryption to be used to hide what it had good reason to believe was criminal behavior. Flexible standards of reasonableness, informed by well-developed industry best practices, can grapple with either of these situations.

Because courts largely have not had the opportunity to weigh these issues through a gradual and iterative process over the quarter-century that Section 230 has been in effect, it would be ill-advised simply to throw all the questions surrounding online moderation to the judicial process in one fell swoop. This would invite a torrent of litigation that threatens to do more harm than good.

To make the transition less chaotic, there should be procedural limitations, such as heightened pleading standards and an explicit safe harbor to cut litigation short at the pleading stages. These reforms also should incorporate industry standards and best practices, and a judicial review mechanism that can provide feedback to the process.

There are legitimate concerns when it comes to federal legislators tinkering with Section 230. Many lawmakers public statements suggest they want regulations that are totally inconsistent with the First Amendment. But there is more that can be done, within the bounds of the Constitution, to address the very real problem of harmful and illegal content online. The EARN IT Act is not perfect, but it sketches a framework that could be developed into a more balanced reform of Section 230.

Kristian Stout is director of Innovation Policy with the International Center for Law & Economics and co-author of the working paper Who Moderates the Moderators?: A Law and Economics Approach to Holding Online Platforms Accountable Without Destroying the Internet.

Excerpt from:
EARN IT could offer framework for better platform moderation | TheHill - The Hill

Teachers are the enemy.

Thats the message a pair of bills debated in back-to-back hearings last week in the Kansas Legislature sends. The proposed laws, which came out of GOP-controlled education committees, would stifle the ability of K-12 teachers to teach historical fact and diverse points of view, eliminate the affirmative defense for educators, and broaden the ability of parents to challenge books and just about everything else in school libraries and classrooms.

One of the bills would make it a crime for teachers to use material deemed obscene under the longstanding Supreme Court definition, which uses a three-part test that includes prevailing community standards.

That last part is redundant, because its already a crime to expose minors to obscenity. But it plants the suspicion, doesnt it? Just what are those teachers showing our kids? It could be pornography without redeeming social or artistic value, according to theMiller Test, and we must stop it!

The bills,HB 2662andSB 496, appear to be modeled after other proposed legislation spewing from the conservative Heritage Foundation, according toreporting from Kansas Reflectors Tim Carpenter.

The Washington, D.C., based think tank has a nice logo a Liberty Bell and has been influential since the days of Ronald Reagan. Until recently, its primary mission was climate change denial, but lately its jumped on the critical race theory firewagon. It claims that American institutions are not inherently racist because, hey,wasnt that settledduring the Civil War?

Only seven people testified in favor of the parental rights and transparency bills last week, while more than 100 opposed them. The lead for Team Christ was taken by Brittany Jones, an attorney with Kansas Family Voice, a Topeka outfit that says its vision is a Kansas where God is honored, religious freedom flourishes, families thrive, and life is cherished.

Jones said the proposed legislation would give parents an opportunity to shield children from objectionable material. An opposing voice belonged to Chapparal High School senior Mattelyn Swartz, who plans to become a teacher. She said the Senate bill would limit educational opportunities for students, tie the hands of educators, and prevent a learning environment that is engaged and individualized.

But really, thats the point.

These hardcore GOP poohbahs would like to inject themselves between you and every aspect of civic and cultural life. They have largely succeeded here in Kansas.

They have managed to strip the governor of her emergency powers to deal with the pandemic; rammed through legislation during a historic special session to resist federal vaccine mandates; and prescribed punishment for employers who refused to grant vaccine exemptions based on a declaration of faith.

One of the education bills debated last week would shield conservative-minded teachers from consequences, such as negative evaluations or job loss, if they refused to teach ideas that conflicted with their religious or moral beliefs.

These folks talk a lot about freedom, but what they really mean is the ability to do just what they want while making other folks teachers, professors, medical boards bend to their will. And it goes nearly without saying that when they talk about God, they mean the white Christian ideal, a kind of long-haired favorite uncle standing in awheat fieldwho understands that sometimes temptation is just too much.

The tone across a broad range of legislation has been consistent, that government (except for their own brand) needs reined in, expertise is not wanted and that any declaration of religious faith is enough to opt you out of any shared civic or social responsibility. At this rate, it wont be long before a baptismal certificate will be accepted in lieu of having a valid insurance card in your Kansas registered vehicle.

The proposed legislationprobably wont pass, at least not this time, but that shouldnt make you feel any better about the theocrats in the Statehouse trying to control our public schools. They are anti-education, just as the Tennessee Board of Education was when, in 1925, it passed a law forbidding the teaching of evolution, leading to theScopes trial. At the trial, a young high school teacher named John Scopes was prosecuted by William Jennings Bryan, a three-time presidential loser from Nebraska, a commanding orator and the leading fundamentalist Christian in America.

The proponents of the bills could have used Bryans testimony at the hearings last week, if only he hadnt died a few days after the verdict in the Scopes trial. His prosecution rested on the assertion that the law forbidding the teaching of evolution was necessary to defend parental rights, wasnt trying to force religion on anybody, wasnt bigoted. He defended miracles and attacked science. He dismissed expertise, appealed to patriotism, and recited a Robert Burns poem to rustic and simple pleasures.

What right has a little irresponsible oligarchy of self-styled intellectuals to demand control of the schools of the United States, in which 25 millions of children are being educated at an annual expense of $2 billion? Bryan asked the jury during his closing argument. Evolution is not truth; it is merely a hypothesis it is millions of guesses strung together.

It took a jury less than one minute to convict Scopes, who was fined $100.

In 1968, the Supreme Court finally ruled,in a case from Arkansas, that forbidding the teaching of evolution in public school was unconstitutional because it violates the establishment clause. The First Amendment guarantees Americans the right to practice religion or not but it also forbids the government from establishing a religion.

In the case of our theocrats, they demand preferred and deferential treatment, pass laws to provide the broadest possible shields to political allies and true believers, and say to hell with the rest of us. We already have religious exemptions from mask wearing and COVID-19 vaccinations granted solely by a claim of a severely (Im sorry,sincerely) held belief.

This is not the way its always been.

Up until the 2014Hobby Lobbycase, the Supreme Court had weighed the sincerity of belief, from a 1905 smallpox vaccination case to conscientious objectors to the draft during the Vietnam War. In Hobby Lobby, the court said a for-profit company could deny its employees health coverage for contraception based on the religious objections of the owners, and the question of sinceritywas not disputed.

To all you parents out there who are truly concerned about filthy books in your schools, let me say this: There is one book that can be found in every school library across the land, and it has some of the most disturbing things youd never want to read.

Theres a story where this old guy offers up his daughters to strangers, and another in which the daughters get the old man drunk and have sex with him, and father children by him. There are tales in which its hard to keep an accurate body count. There are passages in which innocents are massacred and punishment for supposed sin is passed from generation to generation.

It is full of interest,observedMark Twain. It has some noble poetry in it; and some clever fables; and some blood-drenched history; and some good morals; and a wealth of obscenity; and upwards of a thousand lies.

Twain was referring, of course, to theKing James Bible.

So here we are.

Its not possible to have a safe, responsible society when a large faction of us are given the equivalent of a Get Out of Jail Free card in the form of unquestioned religious exemptions. What is in the hearts of men and women is known only to themselves, and perhaps their gods, but it is unreasonable for declared but unproven belief to be the shield against every form of accountability, from helping fight a global pandemic by being vaccinated to teaching students that scientific consensus says evolution is a real thing. Ditto with manmade global warming. For an educator to do otherwise is irresponsible.

This is not discrimination. Its an existential test for our species.

And were failing it.

Nearly all of the stuff in the bills debated last week, from parental rights to transparency, is already on the books in Kansas. When pressed for evidence parents were being denied access to educational materials, Kansas Policy Institute lobbyist Mike ONeal talked himself into a knotbefore finally admitting he had no evidence, other than some anecdotes and a suspicion of what is going on.

The public has extraordinary public input into local school boards, so much so that its sometimes difficult these days for boards to function. Teachers are vetted by universities and licensed. The vast majority are professionals who take their jobs seriously, strive to give the students their best and would never think of using the classroom as a vehicle for personal or political objectives.

So, why the furor?

Because some Kansas lawmakers would like not only to micromanage classrooms, but to whitewash American history. Racial inequality is baked into the system, no matter what Heritage Foundation might say. Bigotry did not end with the Civil War, or when the Ku Klux Klan was outlawed in Kansas, or when Barack Obama was elected president. It persists as an appalling fact in American life, and a pressing problem that must be addressed before it poisons us all.

Ignorance is not the answer.

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Lawmakers are pushing to muzzle teachers. Kansans who love unvarnished fact must push back - Florida Phoenix

Lieutenant Governor Dan Patrick at Stephens Elementary School

Texas Lt. Governor Dan Patrick on Friday proposed revoking tenure for professors at public universities whose curriculum includes teaching about critical race theory.

The threat comes after the faculty council at the University of Texas at Austin earlier this week passed a resolution asserting its freedom to teach students about issues that include race and gender theory despite demands against it from politicians and others outside academia.

"This resolution affirms that educators, not politicians, should make decisions about teaching and learning, and supports the rights and academic freedom of faculty to design courses, curriculum, and pedagogy, and to conduct related scholarly research," reads part of the resolution, which is nonbinding. "This resolution affirms the fundamental rights of faculty to academic freedom in its broadest sense, inclusive of research and teaching of race and gender theory."

The document also states UT faculty "resolutely rejects" attempts by outside groups, including lawmakers and the system's board of regents, to dictate content.

Patrick said during a news conference at the Capitol Friday that the resolution is another signal the "woke left ... has gone too far."

"We are the ones who pay their salaries," he said, referring to members of the Texas Legislature. "The parents are the ones who pay tuition. And of course, we're going to have a say in what the curriculum is. Of course, we're going to have a say on behalf of the parents. If there are issues that the parents are unhappy with, that the taxpayer are unhappy with, or the Legislature is unhappy with or the Board of Regents.

Patrick added that hiding behind "this academic freedom argument" doesn't work.

Lawmakers already passed a bill banning the teaching critical race theory generally described as an academic discipline that examines the roles of race and racism in American history and how they function in law and society in public schools.

Patrick on Friday said the Legislature is prepared to go a step further when lawmakers reconvene next year. He proposed amending the Texas Education Code to include language that states teaching critical race theory is grounds for removal and ending tenure for all new hires.

Currently, the code states that "a faculty member be subject to revocation of tenure or other appropriate disciplinary action if incompetency, neglect of duty, or other good cause is determined to be present."

Patrick said that language will be amended to include that: "teaching critical race theory is prima facia evidence of good cause for tenure revocation."

"We are not going to allow a handful of professors who do not represent the entire group to teach and indoctrinate students with critical race theory, that we are inherently racist as a nation," he said. "We will change those rules and we will take tenure to be reviewed annually."

In a statement Texas Faculty Association President Pat Heintzelman said Patrick's proposal would continue an attack on education and academic freedom that began when lawmakers took aim at public schools.

"Despite what Dan Patrick apparently thinks, most people don't think like him, especially people who value education. Banning critical race theory from universities and limiting tenure are attacks on academic freedom, which is an important part of the process of helping students develop the critical thinking skills they will need for future success," Heintzelman said.

"The lieutenant governor's job is to give our public institutions of education the support they need for student success, and that means encouraging professors and students to discuss theories and issues that some people may find uncomfortable. Patrick, instead, seems intent on ignoring the First Amendment rights of faculty members and their students."

Proponents of broader discussions on race and its role in American society have argued the term "critical race theory" has been coopted by those who only seek to limit free speech.

"The term has been unjustifiably used to include all diversity and inclusion efforts, race-conscious policies, and education about racism, whether or not they draw from CRT," the NAACP's Legal Defense Fund states on its website. "Attempts to ban CRT are really attacks on free speech, on discussions about the truthful history of race and racism in the U.S., and the lived experiences of Black people and other people of color."

Patrick said his proposal has the backing of state Sen. Brandon Creighton, R-Conroe, the chair of the Texas Senate's Higher Education Committee. The committee will hold interim hearings on the issue as they move forward, Patrick added.

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Lt. Gov. Dan Patrick wants to revoke tenure for professors who teach critical race theory - Houston Public Media

When David Loy was named the legal director of the American Civil Liberties Union of San Diego & Imperial Counties in April 2006, he joined an organization that had six staff members and was involved in a long list of legal cases and political causes.

Some 16 years later Loy is leaving his post to take a job as the legal director for the First Amendment Coalition, a statewide group that advocates for speech, access and expression rights of news media and citizens. His final day at the ACLU, which has now more than three dozen staff members including several lawyers, was Tuesday.

A graduate of Northwestern University School of Law, Loy had worked at a nonprofit law firm in Spokane that focused on police accountability, public access to government records and environmental issues. He had previously worked as a public defender in Spokane as well.

This conversation has been edited for length and clarity.

Q: In the past 15 years San Diego has changed, demographically and politically. Have you seen a shift in peoples acceptance of the kinds of civil rights issues you advocate for?

A: I cant speak to popular perceptions. I dont have an opinion poll on the ACLU right now. I will say certainly in my 16 years Ive seen a lot of positive change locally. The ACLU affiliate locally has been able to work constructively with elected leaders in ways it could not in the past because the politics of an Diego has changed and the elected leaders have changed.

Ill give you one example. My predecessor Jordan Budd helped lead a challenge to San Diego Countys Project 100%, a program by which San Diego County forced every person applying for Cal Works benefits to submit to unannounced home inspections by law enforcement officers.

Jordan with co -counsel challenged that as a violation of Fourth Amendment. Unfortunately we did not prevail in federal courts. A few years ago, we launched a new challenge to Project 100% under state law, claiming it was a violation of state law that prohibits unjustified disparate impact in state-funded programs. And again we unfortunately lost that challenge in state court.

But based on the record and research and the investigation and data we gathered and built on and others had gathered, we made a strong case why the program was not only unjust, unfair, racially biased and an aspect of systemic racism but also was not cost effective and useful in achieving its purported goal of preventing welfare fraud. As a result of advocacy by my colleagues in our advocacy department, and the relationships they had built with the new majority on the county Board of Supervisors, the county Board of Supervisors unanimously voted to repeal Project 100%. Which is an action I think would have been unthinkable 10 or 15 years ago. Even five years ago.

Q: You are a civil rights lawyer in a city just a handful of miles from the border. A lot of the ACLUs work in the courtroom and outside involves border issues. In all the years you worked there the border has changed quite a bit. What is the state of the border in SD?

A: I think it depends on who you ask. For many people particularly people who have deep roots on both sides of the border, particularly communities of color Latino community it is a vibrant binational community and should be thought of as one region. I think that diversity and that community ought to be seen as a strength and appreciated as such.

There is unfortunately another view of the border, which I believe is rooted in racism, xenophobia and fear, which sees the border as a wall that must be maintained at all costs. I think not only is that unethical, immoral and racist, I think it is just plain impossible.

So I think how you see the border depends on who you ask. Many people who live here see it as a thriving binational community that should be treated with dignity and respect. And I hope over time that view will prevail.

Q: What is the biggest challenge or threat to civil liberties you see now to your successor? What is the biggest fire they will have to put out? ?

A: Nationally, the increasing tolerance for authoritarianism and the increasing disrespect for legitimate and peaceful democratic transfer of power is terrifying. This country has always had authoritarian movements, this country has always had wanna-be authoritarians. What is terrifying is how that has become mainstreamed and accepted within significant segments of the U.S. Locally and fortunately I think California has been relatively progressive on those issues. California is far from perfect and has many significant issues my ALCU colleagues will continue to fight, but those are better fights to have than the fights for basic respect for basic voting rights.

Q: Why leave now?

A: Ive been there for 16 years. FAC presented an opportunity for me to go both broader and deeper. This affiliate is responsible for work in San Diego and Imperial counties. So broader on a statewide level, and deeper into my first love in the law, which is defending free speech and peoples right to know. Thats been one of my deepest passions in the law, freedom of expression and access and transparency.

Here is the original post:
ACLU's top lawyer in San Diego departs after 16 years - The San Diego Union-Tribune

The speech and debate clause of the Constitution protects Congress members from lawsuits for what they say during legislative activity. The Supreme Court held that the remarks of U.S. Sen. William Proxmire (pictured here) in a newsletter criticizing a behavioral scientist's work as a waste of taxpayer dollars was not protected under the speech and debate clause. (AP Photo/Henry Griffin, used with permission from the Associated Press)

The speech and debate clause, which appears in Article 1, section 6, of the U.S. Constitution, was written before the First Amendment and has a more limited scope.

The clause, whose inclusion reflected the development in England of an independent Parliament, states that for any Speech or Debate in either House, they [members] shall not be questioned in any other Place. It follows a provision, now largely moot, that prevents the arrest, for civil cases, of members traveling to or from sessions of Congress.

The general purpose of the speech and debate clause is to protect members of Congress from having to worry that anything they say in the course of legislative activities will implicate them in a lawsuit.

In United States v. Brewster, 408 U.S. 502 (1972), the Court distinguished between purely legislative activities, which the Speech and Debate Clause protected, and merely political activities, which it did not.In Gravel v. United States (1972), the Supreme Court extended the speech and debate clause to protect congressional aides, described as alter egos, for work in connection with such speeches, but limited the privilege to legislative activity.

It refused to extend the privilege to the subsequent publication of materials read in congressional debates in this case the Pentagon Papers.

In Hutchinson v. Proxmire (1979), the Court permitted a defamation suit against a senator for derogatory comments made in a newsletter and in forums other than the Senate floor.

In Office of Senator Dayton v. Hanson (2007), the Court ruled that lower courts did not have jurisdiction in a claim against a U.S. senators office by a former employee. The senators office had sought immunity under the speech and debate clause.

U.S. Senator Robert Bob Menendez from New Jerseyrecently sought to use the speech and debate clause to shield himself from allegations of bribery and public corruption. However, lower courts have ruled that his lobbying activities on behalf of particular clients are not protected, and the Supreme Court decided not to review the case.

John Vile is a professor of political science and dean of the Honors College at Middle Tennessee State University. He is co-editor of the Encyclopedia of the First Amendment. This article was originally published in 2009.

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Speech and Debate Clause | The First Amendment Encyclopedia

State attorney Libby Bakalar cites a statute governing the appeal process for election certifications and recounts during a press teleconference at the Division of Elections office in downtown Juneau on Nov. 26, 2018. A federal judge ruled that Gov. Mike Dunleavy violated her First Amendment rights when he fired her on the day he was sworn into office. (Jeremy Hsieh/KTOO)

Recently, a federal district court judge ruled that Gov. Mike Dunleavy violated the First Amendment rights of a Juneau attorney he fired on the day he was sworn into office in December of 2018.

Rashah McChesney sat down with former assistant attorney general Libby Bakalar to talk about what the ruling means.

The following transcript has been edited for length and clarity.

Rashah McChesney: This is kind of a complex timeline, so lets walk through it. You have this blog, One Hot Mess, for several years. At one point, you start writing about former President Trump, and another attorney and the state complains. The state investigates you and your blog and finds no wrongdoing.

Then Gov. Dunleavy gets elected, and he and his former chief of staff, Tuckerman Babcock, send out these demands for resignations to 800-something employees in the state including you. Something thats recently deemed unconstitutional. You resign. Gov. Dunleavy gets sworn in at noon on Dec. 3, and you find out 20 minutes later that youve been fired.

Thats more than three years fighting for this. What was that process like?

Libby Bakalar: You know, it was really slow and grueling, to be honest. I mean, it wasnt like every single day, something different was happening in the case or anything. Its just, its a long time to be in limbo with something like this. You know, I think I wrote about this in my blog it just a takes a very long time to prove this kind of point. When I filed this case, I was like, Ill be surprised if this is resolved within Dunleavys first term of office. So I fully expected it to take pretty much as long as it took. Its just part of being a litigant.

Rashah McChesney: One of the reasons that Tuckerman Babcock said that he did it was because he didnt like your resignation letter. Im wondering if you could tell me a little bit about that letter and sort of describe what you were thinking when you wrote it.

Libby Bakalar: Well, so the attorney general at the time, Jahna Lindemuth, gave everybody a template to write the resignation letters on. So every attorney who submitted the resignation letter used the same template. I may have added something like, Im doing this under duress, or Im doing it because, you know, Mr. Babcock said I was going to be terminated if I didnt do it. I kind of wanted to make it clear that my resignation wasnt voluntary. But that language about the resignation being involuntary was in the template. And as Judge [John] Sedwick said, another attorney who used the exact same language that resignation letter wasnt accepted. So that was just something that I think that we found completely not credible. And I think when you read the letter, you can see its completely professional and completely anodyne. So, you know, that was clearly pretextual and Sedwick saw right through that.

Rashah McChesney: When you submitted that resignation letter did you expect that they were going to accept it and that you were going to lose your job?

I think in the back of my mind, I was worried about losing my job, but I knew that what I was doing was legal. Thats the thing, right? I knew my work was good. I knew my relationships with my clients and colleagues were good. My work was beyond reproach, right? And I knew I had the constitutional right to speak on these matters. And so my mistake was assuming that these folks were going to comply with the law, right? And I think I must have thought that because, you know, when they called me and told me about this, that I was fired, I was like, I picked up the phone, and I said, Are you calling and telling me Youre firing me? And like, yeah, sorry, basically. So it kind of, you know, wasnt like this huge shock, I guess. But I think deep down, I was like, they couldnt really do this, because this is against the law, right? And they did it anyway. And were, you know, were a firm of lawyers. So I thought, Theres no way that these lawyers are going to carry out this illegal order, from Tuckerman Babcock, and I was wrong about that. I was wrong about that. So I think I was surprised on some level.

Rashah McChesney: This is a little bit of a rabbit hole, but there was another lawsuit against the governors administration, for demanding those resignations. These psychiatrists from Alaska Psychiatric Institute sued over the same thing, over being asked to resign.

Libby Bakalar: Right. The ACLU filed a case on their behalf of at the same time that they filed my case. And in that case, the psychiatrist plaintiffs did not submit resignation letters at all, and because of that, the judge had a different analysis. Theres these two lines of free speech cases like this. And one of them has to do with patronage schemes, and one of them has to do with policymaking and disruption at work. And the former line of cases is what the psychiatrist case was about, because they did not submit those resignation letters. And so the judge was able to find in that case, that the entire scheme itself, the resignation letter scheme itself, the very act of submitting of was essentially an unconstitutional patronage.

Rashah McChesney: So, they were just on some kind of parallel track this whole time?

Libby Bakalar: The judge declined to consolidate those two cases early on, the ACLU asked to have them consolidated and for a number of reasons, he denied that motion. And I think when you see the two orders, in those two cases, you can kind of see why. There are a lot of different issues. Obviously the psychiatrists, they didnt have this blog. There wasnt this whole question of whether they were policymakers there wasnt, there was just kind of some different issues going on, different fact patterns.

So yeah, they were similar in some ways. But in a way, it was the best possible outcome, in my opinion that these two cases were decided separately and on different grounds. Because what the judge did, essentially within one case, he invalidated the resignation demand scheme on its face. And in my case, he invalidated it as applied to me. Its sort of a double whammy. I think in the end, it was good because we got those two separate rulings that essentially validated the illegalality of this entire scheme, both as it was conceived and as it was applied.

Rashah McChesney: Now that its been ruled that they fired you unconstitutionally how do they pay for it?

Libby Bakalar: So thats yeah, thats the question. Its either gonna be through a settlement or a jury trial. And so this is kind of like the analogy would be the sentencing hearing, kind of. After someones convicted, right, theres a whole other sentencing phase. Its kind of like that. So the judge basically, you know, quote, unquote, convicted them on this wrongdoing. And now theres the quote, unquote, penalty phase, thats more or less the analogy in the civil setting. So its over in the sense that the merits of the case have been decided, I mean, they could always appeal for all I know, they might appeal. And that could change the picture somewhat. But we have this ruling that says they broke the law, right? So now its like, well, how do you remedy that? And thats an open question.

Rashah McChesney: There could still be a fair amount of wrangling.

Libby Bakalar: Theres a fair amount of loose ends. Its not just, like, completely over. Its a win there. Its a pretty much an unqualified win, in my opinion, just because for me, just psychologically, I just, this whole time, all I ever wanted was for a judge to say, Yes, this was unconstitutional. Yes, this was illegal. And that finally happened. And so for me, its over in my mind on that front. In terms of my feelings of vindication on the merits of what they did, how theyre going to pay for it, whats going to happen in the future, how this will affect state employees. What I really care about is that this never happened to another state employee ever again. I never want to see a mass resignation scheme. I never want to see a partially exempt, non-unionized state employee some geologist, biologist, architect, you know be forced to resign their job every four years. Thats just insane.

Rashah McChesney: Is this case as simple as a free speech test? And should every state employee go out now and write whatever they want about the president on a personal blog and feel reasonably certain that they wont be fired?

Libby Bakalar: I dont know. I definitely would hesitate to answer that question in the affirmative. I dont think thats true. I think there is a fact-based analysis of like, what positions are really policymaking positions for which political affiliation is actually a job requirement? I dont think the court order really answers that question in any kind of uniform way. It certainly doesnt say every non-unionized state employee can say whatever they want, whenever they want. Like, thats not what it says. But I think what it does do is it sends a message that, you know, at least in some cases, you know, non unionized state employees do have free speech rights. Its not a good faith constitutional use of personnel resources, to demand resignations, and to make personnel decisions, based strictly on peoples off-duty speech, right?

But there again, theres complicated case law, and these complicated tests and balancing tests and applying all these factors and things. So its not as cut and dried as now, you know, every non-unionized state employee, every partially exempt state employee can say and do whatever they want. No, thats not what this order says. But I think it does send a message that there are still, there are limits, you know, to what the government can do to you. And we do have, we still have democracy, at least nominally. And we still have free speech rights in this country. And even if you work for the state, and thats, thats been established now. And I think it was established before it should have been known before. But now its been reiterated in no uncertain terms.

So I think future administrations are going to think twice before they try anything like this ever again. So functionally, I think its going to be there will be much more deliberation about that transition. About who is told to leave their job, and who was forced to resign their job. And under what conditions, right? I think I will have set some precedent, these two cases will have set some precedent in that respect.

Rashah McChesney: Right, because this is something that happens during every governors administration, generally, is that they asked for the resignation, but usually of political appointees, right?

Libby Bakalar: Usually commissioner-level and director-level people, deputy director levels people who are quite comfortably within that policymaking framework, right. Not typically ever, you know, a Fish and Game biologist, or, you know, city water, a state water inspector or something. I mean, jobs that have absolutely no policymaking, you cant even make a good faith argument that these are policymaking jobs. But, you know, that was all based on norms before, and this administration shattered those norms.

Just because it had never been done before. And the reason it had never been done before was because you would never even consider asking non policymaking employees to resign. And yet, they did do that as some sort of, quote, bold new thing or something to quote Tuckerman Babcock. But what it was, it was a flex, you know. It was a flex. It was an intimidation tactic. It worked. You know, for the past four years, three-and-a-half years people have been absolutely terrified in this administration.

I hear from state employees every day, how scared they are working for these people. And with good reason. They have shown absolutely no compunction about violating the law and penalizing people for quote-unquote disloyalty.

So there was like, a few different kind of iterations of this, right? And all of it just sent this general message of intimidation. And the idea that youre, you know, the administration is lurking on your social media, and theyre just waiting to pounce on you for disloyalty. I mean, thats a terrible and completely undemocratic way to exist as a government employee. And it just made me so angry. And I think thats what fueled this entire thing for me, is that I just wanted to do something impactful for the entire state employee workforce.

Rashah McChesney: In that other case that we were talking about earlier were a couple of doctors sued over this resignation letter requirement. The judge ruled that Tuckerman Babcock and and Governor Dunleavy dont have qualified immunity in that situation. Does that apply to your case as well?

Libby Bakalar: No, it doesnt, and I didnt expect it to either. Qualified immunity is a very hard thing to lose. You have to really do something bonkers to lose it. And I was actually surprised in the psychiatrists case to see Dunleavy and Babcock stripped of qualified immunity, because its functions, in practice, like absolute immunity, it really does.

Ive never seen it happen where a government defendant in a civil case like this loses qualified immunity. Its just unusual, its very unusual. Because if government workers were able to be held personally liable in their jobs, no one would ever work for the government, right? So there has to be some form of protection there.

But I think what the judge was saying is that they went so far with this, this was so out of the realm of reason to do this, that they were personally liable for it. I think, in a way, I think qualified immunity is good for government workers. In another sense, it also disincentivizes good faith conduct on the part of people in power in government, because unless its their personal assets on the line in these types of situations somebody is acting in bad faith theres no incentive to obey the law.

Take my case, for example. Ive been gone from the Department of Law for three-and-a-half years. They got what they wanted, they got me gone, Im gone. Im not there, right? Theyve gone on. And now like the damages phase is, you know, the damages go to the state of Alaska, not to them. So they lost nothing. So when you lose qualified immunity, at least that sends the message of you cant just do whatever you want. At some point, theres going to be a point at which you are going to have to worry about your personal assets in these things. And you cant just disobey the law, and expect to completely get away with it every time and have the State of Alaska foot the bill in the end.

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After winning, Juneau attorney reflects on her years-long First Amendment case - Alaska Public Media News

The U.S. Court of Appeals for the Seventh Circuit has ruled that an employees criticism of their supervisor for alleged misconduct is not protected under the First Amendment.

In this case, the plaintiff was employed as a customer service representative in the clerk-treasurers office in Bargersville, Indiana. The plaintiffs duties included collecting bills and setting up payment plans for utility customers. In late 2017, the plaintiff found that a wealthy resident of the area had failed to make utility payments and had the customers services disconnected.

Soon after, the decision was countermanded by the clerk-treasurer who had services reconnected after business hours. The plaintiff felt that the clerk-treasurers decision was influenced because the resident was a prominent figure in the area and because the two were business partners.

The plaintiff confronted the clerk-treasurer over the matter and stated that she believed all customers should receive uniform treatment no matter their wealth and status. Soon afterward, her duties were shifted away from handling disconnections in favor of more general customer service functions. Approximately five months later, the plaintiff made a mistake in handling fee collections that resulted in the town losing the opportunity to collect approximately $1,000 in fees. The clerk-treasurer fired the plaintiff soon afterward.

The plaintiff filed a lawsuit against both the town and the clerk-treasurer, alleging that she was fired in retaliation for exercising her right to free speech under the First Amendment by confronting the clerk-treasurer over the decision to reconnect the prominent residents utilities. The trial court acknowledged that the first amendment protects the right of a public employee to, in particular circumstances, speak of matters of concern as a citizen.

However, the court also found that in the time in which the criticism took place, the plaintiffs job duties included handling utility disconnections. As a result, criticizing the clerk-treasurer for their handling of utility disconnections amounted to a complaint within the plaintiffs area of responsibility and was not protected by the constitution.

Further, the court noted that even if the complaint was constitutionally protected, there was still insufficient evidence to show that the issue was a motivating factor in the dismissal. There was a five-month gap between the plaintiffs complaint and the termination, which the court noted was too distant to establish a causal link between the incidents.

In response, the plaintiff argues that the timeframe should be measured from the point of the criticism to the point in which the clerk-treasurer decided to fire her, which would reduce the timeframe to only three months. However, the court found that the relevant measure to consider in judging whether or not the timing is suspicious would be between the protected speech and the actual adverse employment action, not the decision process preceding it. Further, the court noted, based on court precedent, even the three-month time frame would not be enough.

This case demonstrates the importance of properly documenting employee misconduct, including performance reviews. These can provide significant protection against claims of wrongdoing in cases where adverse action is necessary.

Pre-employ offers free resources to help you stay compliant in your hiring practices. Check out our guide on 5 Tips To Avoid FCRA Non-Compliance to keep your company up-to-date.

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A councilwoman in OFallon, Missouri, has been impeached and removed after raising questions about the municipalitys now former police chief.

Katie Gatewood, a former law enforcement officer, had learned that the man hired as chief in 2020 had been the subject of controversy at his previous post in Conroe, Texas. According to a report by officers in the Texas Rangers, in 2017, Philip Dupuis responded to a domestic violence call that involved a fellow officer who was one of his friends. According to another officer who responded to the scene, Dupuis seemed more concerned with what would happen to his friend than about the victim.

Gatewoods interest in determining what really happened in Conroe has now led to her ouster. Her attorney, Dave Roland of the Freedom Center of Missouri, said Gatewood made several public records requests and phone calls to learn more information about Dupuis actions. Her colleagues accused her of violating city ordinances by making those inquiries and, last week, voted to impeach and remove her from office.

Those actions have Roland concerned. Gatewood, he said, merely exercised her right to free speech.

It raises incredibly severe First Amendment consequences for the voters, as well as for the elected officials who are being threatened with removal from office, he told St. Louis on the Air.

Roland filed a lawsuit against the city on Gatewoods behalf three days before she was ousted by the council. In it, he argues that the councils actions were retaliatory and that the disciplinary panel against her was biased and that these actions violated her constitutional rights.

Listen: OFallon councilwomans removal raises First Amendment concerns

They said, essentially, that it was illegal for her to ask those questions under city law, Roland said.

U.S. District Judge Audrey Fleissig declined to intervene before the impeachment vote. But Roland is hopeful that she will now consider the matter ripe for judicial review. On Wednesdays show, Roland said he plans to approach the federal judge with an updated complaint within a month.

As for Gatewood, her term on the council ends in a little over a year.

We would love to see Katie restored to the council, said Roland, but even if she ultimately is not, we intend to get a ruling as to whether the removal was unconstitutional.

Dupuis resigned from the chiefs job in OFallon last June.

St. Louis on the Air brings you the stories of St. Louis and the people who live, work and create in our region. The show is hosted by Sarah Fenske and produced by Alex Heuer, Emily Woodbury, Evie Hemphill and Kayla Drake. Jane Mather-Glass is our production assistant. The audio engineer is Aaron Doerr.

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Ousted O'Fallon councilwoman will continue to fight - St. Louis Public Radio

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David Stout, a junior at Plainwell High School in Michigan, was suspended for three days last fall as punishment for expressing his religious beliefs in a private conversation with a friend. When his parents learned about his suspension, and the details behind the schools action, they enlisted the assistance of the Great Lakes Justice Center.

After reviewing the background, which extends back to April 2021, the attorneys took on the case and filed suit last Thursday, claiming that the schools principal, assistant principal, and band director all violated Stouts First Amendment right to express his beliefs:

A foundational core of our Constitutional Republic is that the State cannot punish its citizens for engaging in speech that is protected by the First Amendment.

The 29-page complaint provided the court with all the details. Last April, Stout, a self-proclaimed Christian who is active as a football player and band leader at the school, responded to a question texted to him by a Christian friend about the Bibles teaching on homosexuality.

From the complaint:

On or about April 28, 2021, Plaintiff [Stout], using his own smartphone, participated in a series of private group chat/text sessions with these friends from school.

At one point during this group session, one of these children asked to speak with Plaintiff in a private text.

Once Plaintiff began texting with this other child, Plaintiff was surprised that this friend, who was not homosexual, asked Plaintiffs opinions and beliefs about this other childs friends being gay.

Plaintiff stated that the Bible teaches that homosexual conduct is a sin and in the Christian context that God created only two biological genders man and woman.

Plaintiff stated that while homosexual conduct is a sin, however, everyone is a sinner due to freewill choices, and he would pray for them to repent and follow Jesus. He also shared that he would extend love toward them because God commands it, as Jesus died on the cross for them and extends His love toward them, and all they have to do is accept it.

Plaintiff continued that the Bible says at the end of days all will know the truth, every knee will bow, and every tongue confess that Jesus is Lord.

Stouts response offended his friend, and the text conversation ended.

However, the next day Stout reached out to his friend in an attempt at reconciliation:

Although Plaintiff felt his friend was discriminatory, selfish, and unkind, Plaintiff did not want to lose his friendship. Thus, on April 29, 2021, Plaintiff contacted this child for another private chat/text session.

Plaintiff began by expressing that he still held his Christian opinions, but he respected his friends opinions as well.

Further, Plaintiff did not want to end his friendship with this other student because of a disagreement, and he wanted to respect everyones opinions even if they disagreed so they could remain friends.

At no time was this conversation made public. It was private, occurred off campus, and was well within Stouts First Amendment rights. Said the complaint: Plaintiff never posted or otherwise distributed any of the content of this private chat/text to any public social media site, to the school, to other band members, to the student body, or to any other person.

When school officials learned about the conversation (probably from Stouts friend), they called Stout in for several conversations, which ultimately led to his being suspended for three days in October.

Following the filing of the complaint on Thursday, Stouts lawyer, David Kallman, issued a statement to the media:

My clients religious speech and beliefs should be treated with tolerance and respect. Public schools may not violate the Constitution and enforce a hecklers veto of student speech.

Nothing David did caused any disruption or problem at the school. He has the right to express his opinion in accordance with his sincerely held religious beliefs, without vilification or punishment from the government for holding to those beliefs.

Kallman expanded on the case:

David was suspended for three days last fall for stating his Christian beliefs in a private text conversation and in a hallway at school. He is also being punished for not policing and reporting the inappropriate jokes of fellow students.

He was instructed to stop posting his religious comments on all his social media platforms, and was disciplined for the offensive behavior of some other students; something he was unaware of and did not participate in.

David is a good student with a clean record. Nothing he did caused a disruption or any problem at the school. He has the right to express his opinion in accordance with his religious beliefs without vilification or punishment from the government.

Kallmans lawsuit is asking the court to declare the schools principal, assistant principal, and band directors actions unconstitutional and that [they] violated [Stouts] fundamental constitutional rights, and to find that [they] acted outside the scope of their authority.

The suit also demands that the school expunge Stouts school records of any mention of the incident, pay all of his attorneys fees and court costs, and grant such other and further relief as is just and appropriate.

That would include exacting promises from the schools officials not to punish Stout as retribution during his remaining year for bringing them to task for their unconscionable, illegal, and unconstitutional acts.

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Student Sues High School Principal for Violating His First Amendment Rights to Free Speech and Religion | - The Paradise News

The group known as Oath Keepers is a loose network of organizations made up of former military, police, fire, and first responders people who have taken oaths at some point in their lives to defend the Republic.

Rep. David Eastman is a member of the Oath Keepers, and for this, he is being hunted and hounded by Alaska House Democrats.

The Democrat majority members have for weeks been acting to remove Eastman from all of his committee assignments because of his association with the group, whose leaders await trial for their activities leading up to and on Jan. 6, 2021 in the nations capital.

The charges against Yale University graduate and Oath Keeper founder Elmer Stewart Rhodes are serious, but as of yet unproven, as his trial does not begin until April 19.

The Department of Justice charges say Oath Keeper defendants were not just engaged in mere disorderly conduct on Jan. 6 at the U.S. Capitol, but that they organized militarily well in advance to stop the peaceful transfer of power from President Donald Trump to President Joe Biden.

On Wednesday, Rhodes is scheduled to appear before the U.S. House Select Committee to Investigate the January 6th Attack on the United States Capitol. The committee, formed on a party-line vote on July 1, 2021, has been subpoenaing citizens and documents ever since to testify about what they knew and in what manner they participated in the Jan. 6 surge into the Capitol. The committee has even subpoenaed numerous Trump Administration members and advisers, and people associated with other patriotic nonprofit groups, including Women For America First and Moms for America.

Among the dozens of Alaskans who also went to Washington, D.C. on Jan. 6, 2021 to attend a Trump rally and participate in a protest was Rep. Eastman of Wasilla, who stayed a good distance from the halls of Congress the entire time.

For months, socialist organizers in Alaska political circles and their Democrat surrogates in the House have been on Eastmans trail, to try to get him removed from office altogether, due to his membership in Oath Keepers.

But there just are not enough votes for him to be expelled by the House, and Plan B is to redline him from all of his committees.

That failed on Monday because there were evidently not enough votes, but the Democrats plan to take the matter up again when Rep. Sara Rasmussen returns. Although she is a registered Republican, the Democrats are counting on her vote to punish Eastman, who is somewhat of his own caucus most of the time. Rasmussen is said to be out due to quarantine and votes with the Democrat majority frequently.

If the House does act against Eastman, it will set a precedent for the Legislature to punish members for their associations with various legally recognized groups groups such as the Democrat Socialists, or Black Lives Matter.

Oath Keepers is not only a legal organization, it enjoys protection by the Internal Revenue Service as a charitable, non-taxable entity. The IRS recognizes several Oath Keeper affiliates as 501(c) groups, including:

But politically motivated groups like the Democratic Party and Southern Poverty Law Center view Oath Keepers as one of the largest far-right antigovernment groups in the U.S. today.

In a court of law, what a nonprofit political group calls another nonprofit political group is one thing, but when a group is protected by the federal government as a charitable group, its quite another.

The Alaska House Committee on Committees was planning to meet at noon Tuesday to try again to remove Eastman from committees on its roster, but abruptly canceled its meeting, which had not even been advertised on the legislative calendar. That means its likely no floor action will be taken against Eastman on Wednesday.

The dispute is spinning the wheels of the House of Representatives, which is on Day 15 of its current 90- to 120-day session. Although Speaker Louise Stutes said this session was going to be more harmonious, she chairs the Committee on Committees, and she has verbally sneered at those defending Eastman.

Democrat Majority Leader Rep. Chris Tuck on the House floor on Monday said that some rights are simply not allowed. Tuck, who has not served in the military but has sworn an oath as a lawmaker, said there are distinct curbs on peoples free speech rights.

We really dont have the right to do whatever you want. It really is the right to do whats best, Tuck said.

But Rep. Kevin McCabe said that military men and women, when they take an oath, its for life, to defend against enemies foreign and domestic.

Notice there is no expiration on that oath, Madam Speaker, he said, saying that would be important for people to remember in coming days.

Rep. Ben Carpenter, also a veteran, spoke to the importance of defending the First Amendment rights of all Americans.

One of the lessons I learned in the military, after I took my oath to defend this nation, is that the Marxist that sits in the tank next to me has the same rights that I do, Carpenter said. First among those are the right to free speech and to freely associate with the organizations that I choose.

Carpenter continued: If you can remove somebody from a position because you dont like what they say or what they think, its only a matter of time before somebody else gets removed, for some other topic.

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Alaska House Democrats are trying to take away First Amendment rights of Republican members, starting with Rep. David Eastman - Must Read Alaska