Category Archives: First Amendment

Humans of all political persuasions have a tendency to lose sight of why taboos exist and to enforce them rigidly rather than thoughtfully. In two recent cases, American educators chose quality instructional material for their students, only to be stymied by illiberal authority figures who apparently believe that, whenever objectionable words are mentioned, context doesnt matter.

The first example comes from red America: School-board officials in McMinn County, Tennessee, voted to remove Maus, Art Spiegelmans Pulitzer Prizewinning graphic novel about Holocaust survivors, from its eighth-grade curriculum, largely because of eight curse words, including goddamn, in its text. School-board members felt that it was wrong to assign reading with words their students arent allowed to say. I understand that on TV and maybe at home these kids hear worse, school-board member Tony Allman said, according to a transcript of a meeting last month, but we are talking about things that if a student went down the hallway and said this, our disciplinary policy says they can be disciplined, and rightfully so.

Another board member, Jonathan Pierce, acknowledged using crude language himself, but asked, Can I lay that in front of a child and say read it, or this is part of your reading assignment?

Conor Friedersdorf: Banning bad ideas wont make them go away

The second example comes from blue America: Administrators at the University of Illinois at Chicago suspended, investigated, and punished Jason Kilborn, a law professor, over an exam question meant to test students knowledge of civil procedure in a race- and gender-discrimination lawsuit. The relevant material is quoted verbatim in a complaint the professor filed against the university:

One question asked students to analyze a piece of evidence, an account from a former manager that the manager had quit her job at Employer after she attended a meeting in which other managers expressed their anger at Plaintiff, calling her a n and b (profane expressions for African Americans and women) and vowed to get rid of her.

The complaint goes on to clarify, The question appeared exactly like this, with respectfully expurgated references to the racial and gender slurs. All of Kilborns classes were canceled. He was barred from campus and from interacting with anyone in the university community.

In the culture wars, theres a lot of debate about whether the red tribe or the blue tribe poses the greater threat to liberal norms in education. But is that the question we should be asking? The Tennessee school-board officials and the Chicago law-school administrators made the same mistake: Both acted to bolster preexisting community taboos against nasty words, but in doing so, they failed to distinguish between using nasty words in order to wound, profane, or disparage, and mentioning nasty words in order to teach about the problems they represent.

That differenceknown as the use-mention distinction to educators still brave enough to teach itis a key bulwark against anti-intellectual attacks on art, literature, philosophy, and more.

These recent acts of illiberal language policingcoinciding with a racial reckoning on the left and a backlash against its excesses on the rightthreatens to degrade the education of all young people. Disregard for context or intent will serve students poorly in a world where survivors of genocide do curse while conveying their experiences and where lawyers do grapple with fact patterns that include racial slurs. And ignoring the use-mention distinctionor acculturating students to reject itvests the mere mention of nasty language with more power to disconcert or wound, not less. In the University of Illinois controversy, Kilborn reported that he used that same exam question for 10 years without incident. Norms change over time, of course. But the newer norms seem to invite students to evaluate course content in superficial terms.

Whats more, the mere absence of nasty words would not even protect anyone from reprehensible ideas. Hateful sentiments worthy of our scorn can be conveyed via non-taboo diction. Thats why we should teach young people to direct their ire toward objectionable intent.

John McWhorter: Even trigger warning is now off-limits

The law professors punishment violates core values of higher education. As his lawsuit puts it, The University of Illinois Systems Guiding Principles at the very beginning explicitly ensure an unyielding allegiance to freedom of speech even controversial, contentious, and unpopular speech and pledge that protected speech cannot be prohibited or punished. Yet they transgressed against both academic freedom and the First Amendment.

School boards are legally entitled to set curriculum, and all public schools draw arbitrary lines around what is age-appropriate. Yet in the Tennessee district, the effect of stripping the curriculum of curse words that are already ubiquitous in American culture was to deprive eighth graders of an encounter with a powerful graphic novel. The school boards move prompted a host of social-media testimonials to the power of Spiegelmans book. I read Maus when I was nine years old and it changed my life, the writer Jane Coaston of The New York Times recalled. It made me a better person, a more empathetic and compassionate person.

The McMinn County School Board might well be depriving multiple students of similarly edifying or transformative experiences, and its difficult to imagine how this censoriousnesscouched as protecting kids from foul language they likely have heard many timeswould help any students.

Decide for yourself about which of these illiberal actions is more worrisome. So long as significant factions on the right and left fail to embrace core liberal insights and values about language in education, students will be ill-served by whichever strain of illiberalism happens to wield power.

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Where Language Policing Leads in Education - The Atlantic

The Supreme Court of Oklahoma allows access to records as a matter of public policy.

Recently, the Oklahoma Supreme Court decided a case on the confidentiality of judicial and administrative records. The State of Oklahoma v. Dennis Rivero decision is unique for many reasons, not the least of which is that the Oklahoma Supreme Court recognizedbut did not applythe presumption of public access to public records. Instead, the court held that public policy embodied by the states Open Records Act required it to overturn a blanket ban on disclosure. In this groundbreaking decision, the Oklahoma Supreme Court reached the same result as other courts have, but on new grounds that may now be followed in other courts across the nation.

Many courts decide similar cases on the basis of the presumption of public access to court records under the U.S. Constitution. The Oklahoma Supreme Court recognized this First Amendment presumption, and even pointed out that it follows that presumption in other cases. Yet it did not decide according to that constitutional presumption in this particular case.

Alternatively, many courts decide these cases on the basis of contract law. The courts in these other cases construe the agreed protective order or confidentiality agreement as a contract and interpret it accordingly. This issue, too, the Supreme Court of Oklahoma recognized but declined to address.

Instead, the court took a new approach to the facts presented in the recent case. Dennis Rivero, a physician, had defended a disciplinary proceeding before the State Board of Medical Licensure and Supervision. He agreed to a blanket protective order in that proceedingmaking everything confidential and limited to use in that proceeding, and in that proceeding only.

Rivero won the disciplinary proceeding. With that administrative proceeding at an end, he filed a lawsuit against the person whom he thought complained about him. Rivero asked the Board for copies of two depositions, and copies of his own motion for summary judgment and exhibits in the disciplinary proceeding. The Board refused, citing the agreed protective order that the doctor had signed, which make everything confidential and limited to use only in that disciplinary proceeding.

Rivero appealed the Boards order denying him access to these materials. On appeal, the Oklahoma Supreme Court ruled on the basis of public policy expressed in the Oklahoma Open Records Act and the Oklahoma Discovery Code. The Code, which the Board adopted for its proceedings, is similar to the Federal Rules of Civil Procedure. The Supreme Court ordered the depositions and the motion for summary judgment with its exhibits to be redacted and released.

Many states have public records lawsor, as in Oklahoma, open records laws like the federal Freedom of Information Act. The Supreme Court of Oklahoma ruled that just like the constitutional presumption of public access, the public policy embodied by the state Open Records Act and the Discovery Code in the Rules of Civil Procedure bars the use of blanket confidentiality orders. The court sent the matter back to the Board with directions to allow the doctor access to the documents after limited redactions and to allow him to use the redacted documents in other proceedings.

The court in this ruling made several unique moves that courts in other states could follow. The court ruled on the basis of public policy embedded in state statutes, not on constitutional requirements. And, state open records laws like those that influenced the Oklahoma Supreme Court are found throughout jurisdictions in the United States. They embody the same public policy favoring disclosure to the public as the Oklahoma Open Records Act, which the Oklahoma Supreme Court relied on in its opinion.

Furthermore, the court rested its decision on the fact that the State Board in question adopted the Oklahoma Discovery Act which has requirements for making documents and information confidential. As the Supreme Court described them, these statutory requirements have their conceptual origins in their counterparts found in the Federal Rules of Civil Procedure, Rule 26 and Rule 29.

All jurisdictions in the United States have rules of civil procedure. The effect of the Oklahoma Supreme Court reaching out to the public policy embodied in the Oklahoma Discovery Act is the legal equivalent of reaching out to the public policy embodied in the applicable rules of civil procedure. Under these rules, there is a presumption of public access to court files which must be accommodated, even in cases that contain case documents with public access restrictions.

An important aspect of this ruling is that it arises from a case involving a state administrative agency. So, the presumption of public access to court files was extended to public access to administrative agency files. Previously, disclosure was not mandated in all proceedings. The impact of the Oklahoma Supreme Courts ruling in this case could be universal: Public access to the records of courts and of administrative agencies is now presumed.

In Oklahoma, the new default is that the public has access to government materials. To restrict the publics access will be an exception, not the rule. Parties can agree, stipulate, or contract as they wish. But the parties cannot restrict public access in any proceeding simply because the parties wish it so.

Dennis Wall is a litigator and a member of the American Law Institute.

Here is the original post:
New Public Access to Court Records - The Regulatory Review

Feb 4 (Reuters) - Johnson & Johnson tried to get a U.S. judge to block Reuters from publishing a story based on what it said were confidential company documents about the healthcare giant's legal maneuvers to fight lawsuits claiming its Baby Powder caused cancer.

"The First Amendment is not a license to knowingly violate the law," said the company in a filing late Thursday in U.S. Bankruptcy Court in New Jersey, where a unit of J&J had sought bankruptcy protection while defending the Baby Powder lawsuits. The First Amendment of the U.S. Constitution protects freedom of the press.

On Friday, Reuters reported that J&J secretly launched "Project Plato" last year to shift liability from about 38,000 pending Baby Powder talc lawsuits to a newly created subsidiary, which was then to be put into bankruptcy. By doing so, J&J could limit its financial exposure to the lawsuits.

Register

After the publication of the story, Reuters asked U.S. Bankruptcy Judge Michael Kaplan to deny J&J's motion, claiming it was moot. Less than an hour after Reuters submitted its letter, J&J said in a filing that it was withdrawing a request for an immediate hearing on the matter but was "not prepared to agree" that its request regarding the documents was moot.

J&J said in its filing after the publication of the story that it intends to continue discussions with Reuters and said it was "heartened that publication of confidential documents may no longer be imminent."

J&J's request to block publication was "among the most extraordinary remedies a litigant can request under the law," attorneys for Reuters, a unit of Thomson Reuters , said in a Friday court filing. The news agency's lawyers called J&J's request a "prior restraint of speech on a matter of public interest."

J&J said Reuters had obtained documents that were protected from public disclosure by an order from Kaplan. The company demanded that Reuters return the documents and refrain from publishing information gleaned from the documents.

"This is a complex matter that should be heard by the court in a forum where both sides present their cases in an appropriate setting and not argued through the media," a J&J spokesperson said in a statement on Friday.

Reuters denied that it has confidential information, saying in court papers that the confidentiality of one of the documents was lifted in January and that the second is not in the possession of Reuters.

J&J's (JNJ.N) LTL unit filed for bankruptcy in October to resolve the claims alleging J&J's talc-based products contained asbestos and caused mesothelioma and ovarian cancer. read more

J&J maintains that its consumer talc products are safe and have been confirmed to be asbestos-free.

The company has said it placed LTL into bankruptcy to settle those claims rather than litigating them individually. It has said resolving these claims through Chapter 11 is a legitimate use of the restructuring process.

Talc plaintiff committees argue that J&J should not be permitted to use bankruptcy to address the talc litigation and that by doing so, it is depriving plaintiffs their day in court.

Register

Reporting by Tom Hals in Wilmington, Delaware and Maria Chutchian in New York; editing by Amy Stevens and Rosalba O'Brien

Our Standards: The Thomson Reuters Trust Principles.

Read more here:
J&J tried to get federal judge to block publication of Reuters story - Reuters

The hosts of "CBS Mornings" piled on podcast star Joe Rogan, who is the target of liberals in media and entertainment to be deplatformed by Spotify.

Spotify has been facing growing pressure to remove Rogan from its service over allegations that his popular show has been peddling COVID "misinformation," causing musicians like Neil Young and Joni Mitchell to pull their music from the streaming giant.

GLENN GREENWALD: IF LIBERALS FORCE SPOTIFY TO DUMP JOE ROGAN, NOBODY IS SAFE FROM PETTY-TYRANT TACTICS

While covering "Spotify's misinformation fight," CBS host Tony Dokoupil acknowledged "these musicians are not going to win this battle," but appeared to express solidarity with them.

Joe Rogan, the popular podcast host on Spotify, has emerged as Public Enemy No.1 among liberals. (Photo by Michael S. Schwartz/Getty Images)

"You have a First Amendment right to say what you want. You don't have a First Amendment right to appear on a platform as large as Spotify. That's the issue," Dokoupil said. "Joe Rogan is correct that the medical world gets stuff wrong, but there's a process by which the medical world corrects itself, and that process is not interviewing guys on the fringe of the medical world on your massive platform. That's called irresponsible. Its not censorship."

"Editors are not censors, they're ensuring quality," Dokoupil added.

Co-host Gayle King then chimed in, suggesting the solution to combat Rogan isn't simply to just "turn it off."

"The thing is, a lot of people do listen to it, and they're getting false, incorrect information and that's why it seems so dangerous," King said.

JOE ROGAN BREAKS SILENCE AFTER NEIL YOUNG'S SPOTIFY CONTROVERSY

"He has a huge reach. He has a huge reach," co-host Nate Burleson emphasized.

"And it matters," Dokoupil said, later adding, "it's a life or death issue. Thats why its in a special category."

JOE ROGAN QUESTIONS EVERYTHING -- "Podcast" -- Pictured: (l-r) Joe Rogan, Duncan Trussell -- (Photo by: Vivian Zink/Syfy/NBCU Photo Bank/NBCUniversal via Getty Images)

Spotify announced that it will begin to put a disclaimer at the beginning of Rogans show when he discusses COVID.

Rogan himself addressed the uproar thanking Spotify for its support and expressing approval of the added disclaimer to his podcast.

CLICK HERE TO GET THE FOX NEWS APP

He also vowed to invite guests to balance out the controversial COVID views that are said by others on the podcast.

Spotify previously struck a whopping $100 million deal for the exclusive rights to "The Joe Rogan Experience."

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CBS hosts say Joe Rogan doesn't have 'First Amendment right' to be on Spotify: 'It seems so dangerous' - Fox News

The Supreme Courts free-speech docket this term features few obvious blockbusters, unless you have strong feelings onbillboard policy. But inEgbert v. Boule, a case set for argument this March, the Court will answer a somewhat arcane question that could have important consequences for press freedoms: whether federal officials can be held personally liable for damages when they retaliate against individuals for exercising First Amendment rights.

Your newsletter writers, alongside several colleagues at the Reporters Committee,filed a brieflast week to explain why they can and why the issue should matter to members of the news media.

The notion that there should be a remedy whenever the Constitution is violated is an old one. AsMarbury v. Madisonput it, our government would no longer deserve to be termed a government of laws, and not of men if the laws furnish no remedy for the violation of a vested legal right. But in practice, even clear violations routinely go without redress. One reason why: While Congress long ago passeda statutethat allows victims to suestateofficials for damages when they infringe on federal rights,no counterpart existsto hold federal officers accountable as well.

In a 1971 case,Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court recognized that that fact risked creating something of a legal black hole. Sometimes, of course, the courts can safeguard rights through remedies other than damages by barring the government from enforcing an invalid law, say, or by throwing out evidence that was obtained illegally. But on other footings, the choice will be either as Justice John M. Harlan II put it in a separate opinion damages or nothing.

Webster Bivens, for instance, was illegally searched and arrested but never prosecuted, so he would never have (or need) a chance to ask a court to exclude the fruits of the governments unconstitutional search. On that footing, the Court concluded, courts have the power to hear a claim for damages against the rogue officer, even in the absence of action from Congress, to ensure that those rights dont go entirely without redress.

Soon afterBivens, a number of federal courts recognized that the same logic could apply to First Amendment violations: once aprotest has been broken up, a court can hardly order the Park Police to put it back together again. In the years since, though, the Supreme Court has soured on so-called Bivensremedies and has largely declined to recognize them in factual scenarios other than the one presented inBivensitself. Chastened, the lower courts have also retreated. Now, petitioner Erik Egbert a border agent who allegedly assaulted respondent Robert Boule and then retaliated against him for reporting that claimed misconduct has asked the Court to shut the door to newBivensremedies entirely, including in the First Amendment context.

We filed afriend-of-the-court briefin support of Boule to urge the Court to preserve that recourse for individuals whose First Amendment rights are violated by federal retaliation. After all, when retaliation chills reporting when, for instance, an unlawful arrest drives a journalist from the scene of a newsworthy event the impact on First Amendment freedoms is irreversible. Nothing can, at that point, restore to the public news never gathered or photos never taken. As a result, the right to report depends critically on deterring abuses before they happen, and only the threat of damages for the rogue officer can play that role. To wipe out that safeguard would give the government a gratuitous green light to punish the press for performing its constitutional function.

Argument in the case will be held on March 2; as you can imagine, we plan to tune in.

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy combining the law, policy analysis, and public education to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Gillian Vernick.

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Supreme Court should ensure First Amendment rights have remedies, Reporters Committee coalition argues - Reporters Committee for Freedom of the Press

An Oregon church is suing the city of Brookings, Oregon, over limits the local government has imposed on how often it can serve free meals to the poor. A federal lawsuit filed Friday by St. Timothy's Episcopal Church argues that Brookings' regulations on "benevolent meal service" unconstitutionally restrict its religious mission to feed the hungry.

"What we're doing is what churches do. Churches feed people," Rev. Bernie Lindley of St. Timothy's toldReason last year, shortly after the Brookings ordinance passed. "To tell a church that they have to be limited in how they live into the Gospel of Jesus Christ is a violation of our First Amendment right to freely practice our religion."

St. Timothy's has run a soup kitchen several days a week since the 1980s, as have other churches in Brookings. When those churches shut down their meal service during the pandemic, St. Timothy's extended its effort to six days a week.

Seeing more people at the church more days a week didn't sit well with some of the neighbors. They complained in an April 2021 petition to the city government that St. Timothy's soup kitchenand its participation in the city's safe parking program, whereby it lets people live in their cars on the church parking lotwas bringing crime and vagrancy to the area.

In response, the city council passed an ordinance in October that said churches and nonprofits in residentially zoned areas could offer free meal service only two days a week. And to do that, they needed special conditional use permits.

On paper, this was actually a liberalization of Brookings' zoning rules. Because state health authorities regulate soup kitchens like restaurants, and restaurants are a commercial use, soup kitchens were technically prohibited in the city's residential zones. And all of Brookings' churches are located in residentially zoned areas.

City Manager Janelle Howard says the ordinance was intended as a compromise: It legalized technically prohibited soup kitchens while mollifying residents' complaints about the nuisances they caused.

In practice, though, the churches' charitable work had been unregulated before. The ordinance's actual effect was to pave the way for a crackdown.

Lindley and St. Timothy's participated in early talks with the city about its soup kitchen ordinance, but they dropped out after it became clear that Brookings intended to limit the number of days the church could offer meals.

The ordinance became enforceable last week, potentially opening St. Timothy's up to fines and other sanctions. To prevent that, the church and the Episcopal Diocese of Oregon filed a lawsuit in the U.S. District Court for the District of Oregon.

The complaint argues that Brookings' soup kitchen regulations violate the U.S. and Oregon constitutions' protections of free expression and the free exercise of religion. It also claims that the regulations' vague description of "benevolent meal service" and unclear potential sanctions violate the U.S. Constitution's due process protections.

Lastly, it argues that Brookings is violating a federal law limiting state and local governments from adopting land use regulations that impose a "substantial burden" on "religious exercise."

"We've been serving our community here for decades and picking up the slack where the need exists and no one else is stepping in," Lindley declared in a statement. "We have no intention of stopping now and we're prepared to hold fast to our beliefs. We won't abandon the people of Brookings who need our help, even when we're being threatened."

Original post:
Lawsuit: Crackdown on Church Soup Kitchens Violates the First Amendment - Reason

This interview will be on St. Louis on the Air at noon Tuesday. This story will be updated after the show. You can listen live.

On a recent Saturday, local high school teacher Tony Nipert deboarded a MetroLink train at the Central West End station while enjoying one of his favorite hobbies: exploring St. Louis. As he exited the train, he decided to snap a quick photo of the train departing toward downtown, and pulled out his phone.

After taking a quick shot of the moving train, he decided to take one more photo because the newly refurbished station was looking so good.

I love how the buildings kind of rise up out of the station. So I got back at a distance, and at this point nobodys on the platform, recalled Nipert, who at the time was working on a piece for Next STL about how MetroLink is safer than many people think. Its kind of empty except for the two security guards. And I take a big landscape photo of it.

About two seconds after he nailed his shot, Nipert told St. Louis on the Air, a security guard yelled at him.

She said, Who are you taking a photo of? And I said, Oh, Im taking it of the platform, and I gestured that I was trying to do that. And she said, You cant do that. And so, you know, I didnt know the rules, Nipert explained. I thought maybe I was in the wrong, so I apologized and walked off.

While Nipert shrugged off the interaction as no big deal, he added that he was surprised to learn Metro Transit wouldnt want people taking photos of the transit system which he thinks of as part of the public commons.

Evie Hemphill

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St. Louis Public Radio

So that was one of the weird things, he said. And I thought to myself [that] maybe theyve got some rules about customer privacy or something and theres a worry about something like that.

In fact, Metro does list rules on its website for photography and video along the transit system. While the agency notes that such images are fun ways to commemorate your trip on Metro, it asks riders to keep from interfering with Metro service and indicates that lights, tripods and other types of equipment are not permitted and that such activities may be limited for security, safety or customer convenience.

The transit agency outlines separate rules for journalists and commercial photographers, saying that such people must first contact the Metro Communications Department for approval.

Those distinctions raise some questions and concerns for Lisa Hoppenjans, assistant professor of practice and director of the First Amendment Clinic at Washington University School of Law.

After all, photography is a form of expression, and as such connects to First Amendment rights enshrined in the U.S. Constitution. Even so, Hoppenjans acknowledges that such rights are not absolute.

On Tuesdays show, Hoppenjans will join host Sarah Fenske for a closer look at what the law says about photography in public places.

Have you ever tried to take a photo in a public place, only to be told it's not allowed? What questions or hypotheticals do you have for First Amendment lawyer Lisa Hoppenjans?

Leave us a voicemail at 314-516-6397, email talk@stlpr.org or share your thoughts via our St. Louis on the Air Facebook group, and help inform our coverage.

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.

Continued here:
Photos, public space and the 1st Amendment - St. Louis Public Radio

Editor's Note: This post also appears on Just Security.

The U.S. governments prepublication review process for written works by certain current and former government officials is a mammoth system of prior restraint that impacts the speech of millions. We and others have highlighted the problems with this system, including its scale, lack of adequate process, arbitrariness, violation of the First Amendment, massive chilling effect, and adverse consequences for national security.

The challenge has been figuring out a way to fix the system. Almost six years ago, the House Permanent Select Committee on Intelligence (HPSCI) expressed its concerns with the pre-publication review process and directed the intelligence community (IC) to issue a policy within 180 days that was more consistent with due process and the First Amendment. Though the IC normally takes steps to comply with such non-legislative HPSCI directives as a matter of comity, six years later the IC has not implemented a change in prepublication policy. Another route to change litigation to challenge the constitutionality of the prepublication review system has been rare. The main reason is the widely held belief that the Supreme Court blessed the modern massive prior restraint system in the 1980 case Snepp v. U.S.

This belief is false: the Supreme Court did no such thing in Snepp. In explaining why this is so, this post and a subsequent one draw on an amicus brief that we filed in support of the pending cert. petition in Edgar v. Haines. The petition asks the Court to overrule Snepp or to clarify that lower courts should not read the decision to preclude meaningful scrutiny of the federal governments current prepublication review regime under the First Amendment. The thrust of our amicus brief is that Snepp is an illegitimate foundation for todays prior restraint system. (David Zimmer and Benjamin Hayes of Goodwin Procter, to whom we are very grateful, drafted and filed the brief, which we rely on here in part.) The first reason for this conclusion, discussed in this post, is that the Supreme Court in Snepp decided the foundational First Amendment issue in a brief footnote in the procedural history section of a shadow docket summary reversal without merits briefing or oral argument, and with other procedural irregularities. The second reason, discussed in subsequent posts, is that the illegitimate decision in Snepp became the foundation for a massively broader, different-in-kind, and worse system of prepublication review than was in place at the time of Snepp.

The Background to Snepp

The prepublication review system in place when Snepp was decided in 1980 is nothing like the one that today restricts the speech of many millions of current and former government employees. Prepublication review began in the 1950s as a small and casual system in the Central Intelligence Agency and the National Security Agency. With the increase in writing by current and former officials amidst the 1970s upheavals sparked by Watergate and the Church Commission, the CIA in the late 1970s established a Publication Review Board to review the writings of current and former agency officials. In 1980, the year Snepp was decided, only 148 publications were submitted for review.

The Snepp decision grew out of former CIA analyst Frank Snepps publication of a book about CIA activities that Snepp declined to submit to the Publication Review Board. Snepp thus defied his employment contract pledge to not . . . publish . . . any information or material relating to the [CIA], its activities or intelligence activities generally, either during or after the term of [his] employment . . . without specific prior approval by the [CIA]. The Government sued Snepp to enforce the agreement and obtain a constructive trust for the Governments benefit on Snepps profits. The district court enjoined Snepp from future breaches of his secrecy agreements, imposed the requested constructive trust, and dismissed in a few sentences a claim that Snepp had raised under the First Amendment. The Fourth Circuit also rejected Snepps First Amendment argument. But it declined to impose a constructive trust and reversed the district court on that issue.

Snepp filed a petition for a writ of certiorari that raised the issue of whether a system of prior restraint sanctioned by the court of appeals impermissibly burdens the First Amendment rights of thousands of government employees and the public. The government opposed the petition but filed (separately) a cross-petition conditioned on the grant of Snepps petition. The governments cross-petition stated that the contract remedy provided by the court of appeals appear[ed] to be sufficient . . . to protect the [CIAs] interest. The only reason for filing the cross-petition, the government explained, was so the Supreme Court may review the entire judgment of the court of appeals if it granted Snepps petition. The government made clear that, [i]f [Snepps] petition . . . is denied, this petition should also be denied. The constructive trust issue, the government made clear, was not independently certworthy.

Snepps Illegitimacy

What this Court did next was highly irregular, as our brief says. Three months after cert-stage briefing closed, the Court issued a per curiam opinion without oral argument and without any merits briefing. The Supreme Court summarily reversed the Fourth Circuit on the constructive trust issue that the government said did not warrant independent review, and, in a footnote in the procedural history section of the opinion, it addressed the issue on which Snepp had sought certiorari. The totality of the Courts First Amendment analysis, in footnote 3, is as follows (citations omitted):

[This] Courts cases make clear thateven in the absence of an express agreementthe CIA could have acted to protect substantial government interests by imposing reasonable restrictions on employee activities that in other contexts might be protected by the First Amendment. . . . The Government has a compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service. The agreement that Snepp signed is a reasonable means for protecting this vital interest.

These three sentences became the sole foundation of all subsequent First Amendment scrutiny of prepublication review.

What made Snepps First Amendment discussion irregular was not (just) that it occurred as a brief aside in a per curiam summary reversal on another issue (the constructive trust). As Justice Stevens explained in his three-Justice dissent, the decision contained other unprecedented elements.

Justice Stevens noted that the majority obviously does not believe that Snepps claims merit this Courts consideration, for they are summarily dismissed in a footnote. The Courts cursory treatment of the First Amendment issue, Stevens added, makes clear that Snepps petition would not have been granted on its own merits. Against this background, Stevens argued that it was highly inappropriate for the Supreme Court to grant the Governments conditional cross-petition while in essence denying Snepps petition. In other words, it was inappropriate to grant Snepps petition, which was independently uncertworthy, only to reach an issue that the government said in its cross-petition need not be reviewed, since its interests were adequately protected on other grounds. The Court had reach[ed] out to decide a question not necessarily presented to it.

The context of these untoward procedural shenanigans made them much worse, since the Court in its throwaway footnote fashioned a drastic new remedy . . . to enforce a species of prior restraint on a citizens right to criticize his government. Justice Stevens accurately predicted how the government would deploy the new reasonableness standard for prior restraints: the reviewing agency will misuse its authority to delay the publication of a critical work or to persuade an author to modify the contents of his work beyond the demands of secrecy. Justice Stevens acknowledged the national interest in maintaining an effective intelligence service and the possible need for some system of prior restraint. But he bemoaned the fact that this critical First Amendment issue was decided in the absence of full briefing and argument.

So too did Archibald Cox in the Harvard Law Review. One would have supposed that the extent of the governments authority to silence its officials and employees and thereby deprive the public of access to information about government activity was not too obvious to deserve deliberate judicial consideration, he said. Diane Orentlicher noted at the time that the majoritys summary treatment of the first amendment issues raised by Snepp and its decision to forego oral argument and briefs are particularly noteworthy in view of the fact that Snepp was the first occasion on which the Supreme Court considered the enforceability of the CIA secrecy agreement. Unfortunately, it was also the last occasion on which the Court addressed the issue. For over four decades, Snepps footnote has governed.

* * *

We have not said a word in this post, and we do not say a word in our brief, about how out of step Snepps reasonableness test is with the Courts First Amendment, and especially its prior restraint, jurisprudence. That issue is fully covered in the petition. The emphasis in our amicus brief is on the procedural context of Snepp and the decisions original legitimacy. One would think that the colossal system of prior restraint that inheres in the governments prepublication review system would have been subject to careful scrutiny from this Court, the Introduction to our brief notes. This is especially so since, as the Supreme Court has emphasized, [a]ny system of prior restraint . . . bear[s] a heavy presumption against its constitutional validity. To the contrary, as our brief explains, the federal governments publication-review edifice rests on the shakiest of judicial foundations: a footnote in the procedural history section of a case this Court decided without merits briefing or oral argument. This is one important reason why Snepps drive-by constitutional ruling should not be the last word on this vitally important issue.

Follow this link:
Prepublication Review and the Quicksand Foundation of Snepp - Lawfare

This is an opinion column

Brookside the tiny hamlet outside of Birmingham now infamous for its interstate patrols, aggressive policing and possibly phantom traffic citations might have more to worry about than just Lt. Gov. Will Ainsworths call for an official audit or national news outlets focusing their attention on the town of fewer than 1,300 people.

And thats because the town, by way of its police force and now former Police Chief Mike Jones, may have violated the First Amendment rights of those who complained about arrests, tickets and other traffic stops.

As John Archibald reported Thursday, the Brookside Police Department apparently has a consistent practice of patrolling not just the highways of Alabama but also the byways of social media and retaliating against the departments critics. Two things really stuck out to me as a First Amendment scholar in that most recent piece: one woman, Michelle Jones, who cited a mysterious phone call from a Brookside detective claiming she issued threats, incited a riot and slandered the Brookside Police Department on Facebook and a Brookside man who said, after a similar post, an officer told him the chief was pretty upset and any more backlash like that towards his police department and itll be far worse than a ticket.

Those words should give us all pause and cause for concern at the prospect of the police powers of the state being wielded to silence speech. For while the text of the First Amendment reads, Congress shall make no lawabridging the freedom of speech, we have thankfully interpreted that to mean all agents of government acting under the color of law from the president, to the governor, to public school employees and, yes, even police officers must respect free speech rights.

However, lest anyone start shouting about fires and crowded theaters, there are certainly limits to what the First Amendment protects, and those limits include threats and incitement. It is doubtful, though, that Jones Facebook posts rose to the level of what is constitutionally actionable. Inciting a riot via Facebook sounds like a nigh impossibility, and thats not even considering the limitations under Brandenburg v. Ohio that the state can only punish speech designed to produce imminent lawless action. An online threat is more likely actionable generically, but Jones unless she posted something that a reasonable person would view as a serious expression of an intention to commit violence against the Brookside Police Department was again likely engaging in protected speech.

And if the departments staff truly feels slandered (quick point of order: they would have be libeled on Facebook, the difference there being spoken versus something published), the answer there is for a specific individual to sue Jones for defamation not to harass her via telephone.

But its that second anonymous complaint that gets at the real heart of this banal evil. There is no right in this country for a police chief to not be upset about comments made publicly or to somehow escape a dreaded and terrible backlash. If the First Amendment is to mean anything if were going to have the freedom of speech in this country and in this state it has to mean that police departments cannot threaten critics of their official conduct.

That last point was made clear some 60 years ago in a landmark case from right here in Alabama. In New York Times v. Sullivan, Montgomery Public Safety Commissioner L.B. Sullivan attempted to recover damages from paper after it printed a defamatory ad written by a Martin Luther King Jr. fundraising committee. While Sullivan won in Alabama courts, his judgment was overturned by the Supreme Court as it established the actual malice rule, a standard that works to protect the right to criticize public officials and public figures so long as speakers dont act with a reckless disregard for the truth.

Did Jones actually threaten, incite or defame? Did the Brookwood man bring down some nefarious shroud of untruth upon his hometown police department? Most likely not. What we appear to have is a pattern and a practice of the government silencing speech that it does not like.

And whether thats the federal government, the state government or the people running Americas most notorious (for now) speed trap, thats something we simply cannot have in our country.

Will Nevin, J.D., Ph.D., is an assistant professor and program coordinator for Communications Media at Alabama A&M University.

See the article here:
Brookside PD ran afoul of good policing practices and possibly the First Amendment - AL.com

I am concerned about the new direction the three newest trustees are taking the ImagineIF Libraries.

Doug Adams, David Ingram and Heidi Roedel (the three newest trustees) demonstrated this new direction at the last three board meetings. At the Dec. 2 meeting Adams rightly pointed out that our library, along with most public libraries in the country, use documents from the American Library Association (ALA) to help guide policy decisions. Adams rejects ALA guidance: I find them [the ALA tenets] to be hindering and I dont find them to be genuine. The fact of the matter is, change is hard, but political winds blow, and they blow in different directions. Adams further said, It would be my goal to disassociate from them [the ALA] completely and rewrite policy accordingly.

Adams comments show that he objects to a library that stands for the free access of materials from all points of view. Instead, he intends to bring partisan politics into ImagineIFs policies. The current library policies benefit everyone, regardless of their political leanings.

Ordinarily it would not matter what personal opinion Trustee Adams has, because personal opinion is not what drives library acquisitions. But Adams intends to rewrite library policy based on his political views. Ingram and Roedel share his views.

After the Jan. 13 meeting Adams said he has already started rewriting library policies. In light of what Adams has said at board meetings, these rewritten policies will discard the intellectual freedom our library has protected and remove free access to materials of differing views.

Many of us love the library precisely because it champions freedom of speech and intellectual freedom. Please write our commissioners and trustees to make it clear that this community wants a library that is strong in protection of intellectual freedom and First Amendment rights.

Alice EbiKalispell

Visit link:
Protect Intellectual Freedom and First Amendment Rights - Flathead Beacon