Category Archives: First Amendment

Federal government agents should not have free rein to violate the rights of the public with impunity. That's the uncontroversial premise behind a spate of petitions before the U.S. Supreme Court that pertain to law enforcement officers who breached clearly established law, and whose victims want to seek recourse.

Recourse can prove elusive, if not impossible.

The Court has yet to announce if it will hear two of those cases. The first pertains to a federal officer who devised a fake sex trafficking ring and jailed a teenage girl on bogus charges for two years. The second involves a Department of Homeland Security (DHS) agent who, outside of a bar, tried to shoot a man he had a personal issue with. Federal courts in both cases found that the two government agents violated clearly established law but are protected by absolute immunity and thus cannot be sued solely because of their status with the federal government.

But one similar case has worked its way up to the justices, who are scheduled to hear it on March 2though it appears they may be poised to make it even more difficult for victims of federal government abuse to achieve any meaningful remedy when their rights are violated.

In 2014, U.S. Border Patrol Agent Erik Egbert followed a man to a bed and breakfast where he was staying in Washington state. That man was from Turkey, and Egbert assumed the guest may have come to the U.S. illegally based on the inn's proximity to the Canadian border.

He was incorrect. But Egbert pursued the man and declined to leave the private property after its owner, Robert Boule, requested that he do so. In response, Egbert pushed Boule into a car and then to the ground, ultimately resulting in injuries to Boule's back that required medical treatment. Boule subsequently filed a complaint with Egbert's supervisor, which the Border Patrol agent countered with threats to sic the IRS on him with a business audita promise he made good on.

It's been almost eight years, and Boule has not yet had his day in court, having spent the better part of the last decade asking the government for the privilege to appear before a jury and ask for damages. Thus far, he's been successful: Both the district court and the U.S. Court of Appeals for the 9th Circuit sided with Boule and said he should have the opportunity to bring a civil suit against Egbert for infringing on his First and Fourth Amendment rights.

That shouldn't be surprising. Under a 1971 Supreme Court precedentBivens v. Six Unknown Named Agents of Federal Bureau of Narcoticsfederal agents may be sued when they violate someone's rights. But in recent years, the high court has proceeded to dilute its own decision in significant ways, now requiring that federal agents may not be sued if a federal judge pinpoints "special factors counseling hesitation." You can see where such a subjective standard might go awry.

It was that standard that shielded Officer Heather Weyker, who conjured the sex trafficking ring, and DHS Agent Ray Lamb, whose gun jammed when he attempted to shootthe man he had a feud with. Neither one received qualified immunity, the legal doctrine that protects certain government officials from civil liability if the way in which they misbehaved has not been "clearly established" in a prior court ruling. Weyker and Lamb did violate the law, as the courts acknowledged. Yet although they were denied qualified immunity, they received absolute immunity and can't be sued simply because of their status as a federal employeesomething that should signify a responsibility to protect the public, not a green light to violate their rights without fear of accountability.

Perhaps in a testament to the egregiousness of Egbert's misconduct, he did not clear the low bar passed over by Weyker and Lamb. So he is requesting that the Supreme Court lower the bar even further. A decision in Boule's favor would "undercut the ability of Border Patrol agents to fulfill their basic mission of securing the border, enforcing the immigration laws, and protecting national security," the government wrote in its petition for review, as if immigration officers must reserve the right to assault people and weaponize their power in illegal ways in order to do their jobs effectively.

"The stakes are very high," says Anya Bidwell, an attorney at the Institute for Justice, a public-interest law firm that filed an amicus brief on Boule's behalf this week. If Egbert succeeds, "this would mean no Bivens remedy in the vast majority of cases. This would mean absolute immunity for federal police and other federal officials."

Based on the Supreme Court's recent jurisprudence on the issue, it appears that scenario may be the likely outcomegiving federal agents carte blanche to break the same rules they are meant to uphold.

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A Border Patrol Agent Assaulted Him and Violated His First Amendment Rights. He May Never Get To Sue. - Reason

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or the of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

There are five separate rights in the First Amendment, speech, religion, press, assembly, and the right to petition the government. Before agreeing to accept the Constitution, the Founders of our democratic republic demanded that these freedoms be protected by an amendment to the original document.

Theres no citizenship requirement for First Amendment protection. If youre in the U.S., you have freedom of speech, religion, press, assembly and petition.

The First Amendment favors no political party. It can be used to push for social and political change, or to oppose change. The First Amendment is for everyone.

Where people get balled up about the First Amendment is prayer in schools. The disconnect comes from a lack of understanding both the purpose and intent of this Amendment. It is both freedom OF religion AND freedom FROM religion.

The following quote from the Supreme Court explains the principle.

The question in this case is whether the prayer practice of the town of Greece by doing too little to reflect the religious diversity of its citizens, did too much, even if unintentionally, to promote the political division along religious lines that was one of the principals against evils against the First Amendment was intended to protect. Lemon v. Kurtzman, 403 U.S.602, 622 (1971).

The town of Greece, New York failed to make reasonable efforts to include prayer givers of minority faiths, with the result that, although it is a community of several faiths, its prayer givers were almost exclusively persons of a single faith.

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New concerns over a bill that was crafted to safeguard Mainers right to privacy have emerged, leaving its status in the Legislature uncertain.

The bill would add privacy as a natural right in Maine and protect electronic data and communication from unreasonable seizure by the government. The opponents, who filed objections recently, include advocates for the First Amendment as well as the Christian Civic League of Maine.

Members of the Legislatures Judiciary Committee met virtually with the bills chief sponsor, Rep. Maggie ONeil, D-Saco, on Thursday, nine months after the legislation was first introduced. A public hearing on L.D. 1529, an amendment to Maines Constitution to create a right to privacy, was held in May 2021, but no action was taken.

ONeil came before the Judiciary Committee in an effort to advance the legislation. But committee members voted to table action on the bill, giving the committees chairwoman, Sen. Anne Carney, D-Cumberland, more time to determine whether there should be a second public hearing. Committee members did not set a date for a workshop or a second public hearing on the bill.

It has been a year and I wanted to take this opportunity to refresh everyones memory a bit, Carney said before ONeil made her presentation.

ONeils right-to-privacy proposal has been amended since it was first drafted last year, but until now had not faced any opposition. A similar constitutional amendment was proposed last year by a Republican lawmaker, former Rep. Justin Fecteau of Augusta. ONeil said she worked with Fecteau to combine the bills, producing the amended version.

L.D. 1529 is supported by the American Civil Liberties Union of Maine, among others. To be enacted, it would need the approval of two-thirds of the Legislature and a majority of Maine voters.

Constitutions in 13 states including Alaska, Arizona, California, Florida, Hawaii, Illinois, Louisiana, Montana, New Hampshire, South Carolina and Washington contain specific provisions related to a right to privacy. Constitutions in Michigan and Missouri also provide protection from unreasonable searches and seizures for electronic communications or data.

The real world impact of the right to privacy amendment is unclear. But advocates like ONeil said it would lay the legal foundation to begin setting limits on the types of personal information that can be collected and who can access it, including law enforcement.

There is no explicit right to privacy in the U.S. Constitution.

SEEKING A BACKSTOP

The proposed constitutional amendment would add privacy as a natural right in Maine and states that law enforcement must secure a warrant before searching or seizing an individuals electronic data or electronic communications. All natural persons have an inherent right to privacy that is free from intrusion, including privacy of a natural persons personal life, personal communications, private affairs and personal thoughts or inner life, it reads.

We want this (amendment) to be a backstop. We want to make it more explicit, ONeil said of the constitutional amendment.

ONeil said that advancements in technology, such as mobile phone apps, virtual reality, social media and wiretaps have exposed everyones personal data to abuse.

The privacy risks we face today are more complex and more impactful than ever, she said.

Shoshana Zuboff, a Harvard business professor and author, was invited by ONeil to address the Judiciary Committee. Zuboff said a persons posts on Facebook are just one example of why an amendment protecting a persons privacy is needed.

This is a very fraught arena, Zuboff said, adding that social media sites like Facebook are connected to a much broader and organized personal data collection system.

Zuboffs book, The Age of Surveillance Capitalism, offers a picture of how Silicon Valley and other corporations are mining users information to predict and shape their behavior.

We need to codify a persons right to privacy, Zuboff said.

Though ONeils bill generated no opposition last year, new concerns were raised recently by First Amendment advocates and a group concerned that the legislation would expand abortion protections.

FIRST AMENDMENT CONCERNS

Judith Meyer, representing the Maine Press Association, the New England First Amendment Coalition, the New England Newspaper & Press Association, the Maine Association of Broadcasters and the Society of Professional Journalists Maine, filed an objection to the bill on Thursday.

We understand the need for personal privacy, particularly from government intrusion, but we have grave concerns that the language contained here is overly broad and will implicate First-Amendment protected activities and entitlements under the Freedom of Access Act. Logistically, it will create havoc for businesses and organizations that collect and use personal information, Meyer wrote in Thursdays filing with the Judiciary Committee.

Meyer said her groups recommend the legislation be revised to address only governmental intrusion upon ones privacy, and not private intrusion. The term private intrusion can be interpreted to include the First Amendment-protected activities of news organizations, she said. Journalists rely on personal information, personal communications and a persons thoughts as a standard part of news gathering.

Mike McClellan, policy director for the Christian Civic League of Maine, also filed an objection to L.D. 1529. McClellan said that the bills text regarding a persons personal life and private affairs is almost exactly the kind of constitutional language used by the U.S. Supreme Court to enshrine abortion rights in the U.S. Constitution. The league said the bill needs to be reworked to make sure that the language is limited to a right to preserve personal communications and will not extend to abortion.

The world is changing, and technology has become an integral part of our day-to-day lives, McClellan said. While we see the need and desire of the sponsors to stay ahead of these changes, the Christian Civic League of Maine is unsure if this bill would help or will just move the balance in a different direction. There are already laws that govern our rights to privacy. Perhaps, instead of adding another law we should better enforce the ones we have.

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Concerns emerge over bill proposing privacy amendment to Maine Constitution - Press Herald

Free expression remains highly valued among college students, but their confidence in that First Amendment right is declining particularly among Republicans and Black and Hispanic students.

Thats according to a report on a new survey conducted by the Knight Foundation and the market-research firm Ipsos. The survey examines how partisanship, race, and ethnicity affect students views on free speech. It seeks to capture the full spectrum of not only students opinions on policies, but some of whats underneath that some of the feelings and experiences theyve had with speech in general, and on campus, said Evette Alexander, director of the learning and impact division at the Knight Foundation.

A number of high-profile controversies involving speech restrictions on college campuses most recently at the University of Florida, which made headlines for initially telling faculty members not to testify against the state as expert witnesses have given rise to fears about restrictive speech environments in higher ed. Though college students across demographics see free speech as essential to American democracy, compared with those surveyed in years past, fewer of the 1,000 students surveyed in 2021 believe their right to free speech is secure, and fewer feel like the First Amendment protects people like them.

Only 47 percent of students surveyed in 2021 felt that their freedom of speech was secure, a significant drop from the 73 percent of students surveyed in 2016, the first time the survey was done, who felt secure in that freedom. The decline was particularly pronounced among Republicans, 27 percent whom felt that their free-speech rights were secure, compared with 61 percent of Democrats.

Black and Hispanic students felt secure in their right to free speech at similar rates as the overall number of students surveyed, but when asked whether the First Amendment protects people like them, they were more likely to say no.

Weve known for some time that students of color are more in favor of more policies to limit certain types of speech on campus, and are more interested in creating a safer campus environment when it comes to speech, said Alexander. She said the survey highlights why that might be.

Our study shows that Black students, in particular, but also Hispanic students, dont feel as protected by the First Amendment, says Alexander.

According to the latest survey, 90 percent of white students and 82 percent of Hispanic students believe that the First Amendment protects people like them. This is in stark contrast to the 51 percent of Black students who feel the same way, a considerable change from the 2019 survey results, when 60 percent of Black students felt the First Amendment protected people like them.

A significantly higher proportion of Black and Hispanic students also report feeling unsafe on campus because of others speech. About 20 percent of Black and Hispanic students have reported feeling unsafe on campus because of something someone said about their identities, whereas just 14 percent of white students have felt the same, underscoring the sense of inequality students of color feel about free expression and First Amendment protections.

I think it should concern everyone that students of color dont feel as protected by the First Amendment. The First Amendment is intended to protect all people, and in order for the United States to be a society that promotes free speech and free expression, we need everyone to feel that their speech is equally protected, Alexander said.

Democrats are more likely than Republicans and politically unaffiliated students to report feeling unsafe and uncomfortable on campus.

But seventy-one percent of Republican students feel that the campus environment dampens free speech. Sixty-one percent of Democrats said the same.

A majority of college students continue to believe that its important for colleges to allow students to be exposed to all forms of speech, even if they find it offensive or biased. Where they draw the line is racist speech, according to the survey.

But still, some students particularly Black and Hispanic students prefer colleges to protect them by prohibiting speech they might perceive as offensive or biased. Thirty-six percent of Black students and 32 percent of Hispanic students favor speech protections on campus, compared with just 16 percent of white students, a trend that seems to be increasing over time. In 2019, only 28 percent of Black students and 19 percent of Hispanic students favored speech protections.

Alexander, of the Knight Foundation, notes that a lot of what we have in terms of public opinion on speech on campus is at the aggregate level. Thats actually not helpful, she says. The demographic breakdown of students opinions on the issue is more useful for those working in higher ed who want to respond to student concerns.

Ultimately, the publication of the survey aims to foster the idea that understanding where different groups stand is important for higher-ed leaders as they seek to foster free expression on college campuses and create a campus environment that is diverse, equitable and inclusive, according to the Knight-Ipsos report on the survey.

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College Students Are Losing Confidence in Their Free-Speech Rights - The Chronicle of Higher Education

Washington Governor Jay Inslee has entered the chat also known as the Senate State Government and Elections Committee.

Inslee testified before the committee Friday on behalf of his own proposal to criminalize some election-related disinformation.

That brings the proposal one step closer to Inslee's desk.

But a bill officially pausing the state's long-term care insurance program got there first.

Now the program known as WA Cares will not go into effect until July 2023, giving lawmakers time to make changes and address a wide range of concerns that made Democrats think twice about their own groundbreaking idea. WA Cares would be the first program of its kind in the country.

That means Washington state lawmakers have knocked out one of the biggest issues of the 2022 session just three weeks in.

Now what?

The delay on WA Cares goes into effect immediately with Inslee's signature Thursday.

That means any employees who saw deductions from their paycheck to pay for the program will get refunds. Some, but not all, employers in Washington opted to start collecting the payroll tax as planned on January 1.

The law also made changes to eligibility that could be key to getting the program off the ground the second time around.

People born before January 1, 1968 will now qualify for partial benefits. Previously, someone nearing retirement age wouldnt have enough working years left to become vested in the program.

Inslee also signed a second measure to allow some people to opt out. Among them: individuals who already have long-term care coverage, disabled veterans, military spouses and non-immigrant temporary workers.

People who likely wouldn't benefit from WA Cares because of its geographic limitations as written, the benefits cannot be used outside of Washington would also have the opportunity to opt out; for example, people who work in Washington but live elsewhere, like Oregon.

That law takes effect in 90 days.

So, this matter may be settled for the 2022 session.

Don't count on this being the last word, though.

KUOW Olympia Correspondent Austin Jenkins says it's still likely to see changes during the 2023 session, months before Inslee and his fellow Democrats try to launch it again.

Inslee wants state lawmakers to pass a bill that would criminalize lying about election results.

The legislation would make it a misdemeanor for elected officials or political candidates to "knowingly" or "maliciously" lie about an election if the lies then lead to violence.

Inslee testified in favor of the bill Friday during a legislative hearing, specifically responding to criticism that the proposal was contrary to the First Amendment.

"We don't have to choose between protecting democracy and protecting free speech," he said. "There cannot be free speech without democracy itself, so this bill protects both."

Inslee so far hasn't been able to alleviate those concerns, though.

Several constituents opposed to the bill testified against it some claiming it's Inslee and Democrats who are threatening democracy, citing the "big lie" that the 2020 presidential election was stolen as evidence. That claim is false.

Still, legal experts could not say with any certainty whether the legislation would survive a challenge in court.

Catherine Ross is a constitutional law professor from George Washington University Law School and helped craft the bill.

She told lawmakers the legislation was carefully written so as not to violate constitutional rights, but that hasn't been put to the test.

"There is no way to know what will happen when this is challenged in court, assuming it's challenged in court, because this bills treads a lot of fresh territory," she said. "But... I think it has a real shot at surviving."

First, it'll have to survive the legislative process.

Another proposal may have an easier time finding allies at least among those who have fallen victim to catalytic converter thieves.

As of May 2021, catalytic converter theft was up more than 3,800% in Seattle and King County; 24 such thefts were reported in the Seattle area in 2019 compared to about 950 thefts in 2020.

Prime targets include the Toyota Prius and Honda Element.

The jump in thefts was stunning on its own. But the brazenness of the thieves and why they became such a draw made them a headache for car owners, law enforcement and even mechanics, whose shops have been targeted for customers' vehicles.

So, what can lawmakers do about it short of personally guarding Washingtonians' cars?

The state House is considering a proposal to form a pilot program through the Washington State Patrol, using vehicle identification numbers to track stolen catalytic converters. That bill would also form a Catalytic Converter Task Force.

Another bill would require scrap metal businesses to keep records on transactions involving the precious metals in the devices. Those businesses would also be barred from any transaction involving a catalytic converter unless they're dealing with the owner of the vehicle it came from or a legitimate company.

In short, lawmakers seem keen to regulate thieves out of business.

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Inslee has entered the 2022 session: WA Cares delay is the first bill signed into law - KUOW News and Information

Supreme Court Justice Breyer to retire

Justice Breyer has been facing calls to retire while Democrats can fill his seat in the highest court in the land.

Associated Press, USA TODAY

WASHINGTON Associate Justice Stephen Breyer is expected to step down this year after nearly three decades on the Supreme Court, opening a rare opportunity for President Joe Biden to name a replacement whocould influence the court for a generation.

Breyer, who usually votes with the high court's liberals, has had a profound impact on the American legal system, crafting landmark opinions on abortion rights, the First Amendment and the inner workings of government. He has also written biting dissents on the death penalty, campaign finance and Second Amendment issues.

Here's a look at some of his more memorable opinions:

Mahanoy Area School Districtv. B. L. (2021): Held that a Pennsylvania school district violated the First Amendment when it punished a student for avulgar social media post written off-campus. Writing for an 8-1 majority, Breyer rejected the idea that schools may never regulate off-campus speech but said the school's interests were not sufficiently implicated to justify penalizingthe student's speechin this case.

"It might be tempting to dismiss (the student's)words as unworthy of the robust First Amendment protections discussed herein," Breyer wrote. "But sometimes it is necessary to protect the superfluous in order to preserve the necessary."

Read: MahanoyArea School Dist. v. B.L.

June Medical Services v. Russo (2020):Struck down a Louisiana law that required doctors performing abortions to have admitting privilegesat a hospital within 30 miles of the abortion clinic. Writing for the plurality, Breyer found the law placed burdens on women without providing any "significant health-related benefits," and he laid out the burdens in detail.

"A Shreveport resident seeking an abortion who might previously have obtained care at one of that citys local clinics would either have to spend nearly 20 hours driving back and forth to (a) clinic twice, or else find overnight lodging in New Orleans," he wrote. "Both experts and laypersons testified that the burdens of this increased travel would fall disproportionately on poor women, who are least able to absorb them."

Read:June Medical Services v. Russo

What's next: What is the process for Supreme Court nominations? Here's what's next and how long it could take.

Whole Woman's Health v. Hellerstedt (2016): In aprecursor toJune Medicaldealing with similar circumstances, the court struck down a Texas law that required abortion providers to have admitting privilegesat nearby hospitals. Writing for a 5-3majority, Breyer said that courts must balance the ostensible benefit of abortion restrictions againstthe burdens the law imposes on access to abortion.

"We have found nothing in Texas record evidence that shows that, compared to prior law (which required a 'working arrangement' with a doctor with admitting privileges), the new law advanced Texas legitimate interest in protecting women's health," he wrote.

Read: Whole Women's Health v. Hellerstedt

Stenberg v. Carhart (2000): Yearsearlier, Breyer wrote for a 5-4 court striking down a Nebraska law banning late-term abortions. Physicianswho performed the procedure could have their medical licenses pulled and face prosecution. Breyer wrote that the law was unconstitutional under Roe v. Wade and other cases because it put an undue burden on a woman's right to choose whether to have an abortion. Specifically, the majority concluded the law also could be used to prosecute doctors who also performed second-trimester abortions using the most common method to terminate a pregnancy.

"Allthose who perform abortion procedures using that method must fear prosecution, conviction, and imprisonment," Breyer wrote. "Theresult is an undue burden upon a woman's right to make an abortion decision."

Read: Stenberg v. Carhart

Denver Area Educational Telecommunications Consortium v. FCC (1996): Writing for a 6-3 majority, Breyer struck down a provision of a 1992 federal law allowing cable companies to ban offensive or indecent programming on public access channels. The court upheld another provision allowing cable providers torestrict the transmission of "patently offensive" programming on leased access channels.

"The upshot, in respect to the public access channels, is a law that could radically change present programming-related relationships," Breyer wrote. "In doing so, it would not significantly restore editorial rights of cable operators, but would greatly increase the risk that certain categories of programming (say, borderline offensive programs) will not appear."

Read: Denver Area Ed. Telecommunications Consortiumv. FCC

Dissenting opinions may reflect the losing side of a case butthat doesn't mean they're unimportant. Well-crafted dissents are often cited in future litigation. And the Supreme Court's history is replete with situations where a majority of the justices revisited an old controversy and found an earlier dissent influential in arriving at their decision.

Dissenting and concurring opinions can also signal a justice's thinking on a given issue to astute lawyers who may craft future challengesto address that approach.

NFIB v. Occupational Safety and Health Administration (2022):Breyer wrote a dissent, joined by the court's other liberals, in the recent challenge to Biden's COVID-19 vaccine-or-testing mandate for large employers. In an unsigned opinion, the court ruled that OSHA likely didn't have the authority under a 1970 law that authorizes the agency to impose those requirements and it blocked the mandate's enforcement. Breyer argued the text of the law, while broad, seemed to give OSHA the power to impose the requirements. And he asserted that the court's opinion could have longstanding effects on the government's ability to respond to emergencies.

"It stymies the federal governments ability to counter the unparalleled threat that COVID-19 poses to our nations workers," Breyer wrote. "Acting outside of its competence and without legal basis, the court displaces the judgments of the government officials given the responsibility to respond to workplace health emergencies."

Read: NFIB v. OSHA

Cedar Point Nursery v. Hassid (2021):In a6-3 ruling, the majority concluded that a California law that permitted labor unions to organize on private farms was ataking ofprivateproperty without justcompensation in violation oftheFifth Amendment. Writing for court's liberals, Breyer asserted there was no "physical appropriation" of property and raised concerns about the decision'simpact on safety inspections.

"I do not believe that the court has made matters clearer or better," Breyer wrote. "Rather than adopt a new broad rule and indeterminate exceptions, I would stick with the approach that I believe the courts case law sets forth. 'Better the devil we know...'"

Read: Cedar Point Nursery v. Hassid

Glossip v. Gross (2015): A 5-4 majority of the court held thatOklahoma could use midazolam as an initial drug to administer a death sentence, despite some evidence that it risked subjecting a death row inmate to pain. In an often-cited dissent, Breyer called for a broader reexamination of the death penalty.

"Rather than try to patch up the death penaltys legal wounds one at a time, I would ask for full briefing on a more basic question: Whether the death penalty violates the Constitution," he wrote. "At the very least, the court should call for full briefing on the basic question."

Read:Glossip v. Gross

Parents Involved in Community Schools v. Seattle School District No. 1 (2007): A divided court struck down an effort in Seattle to use race as one factor in deciding which schools students would attend to promote racial diversity. Breyer wrote an impassioned dissent asserting the plurality opinion worked against the vision laid out in the court's landmark 1954case Brown v. Board of Education, which ended school segregation.

"What of the hope and promise ofBrown?" Breyer wrote. "In this courts finest hour,Brownv.Board of Educationchallenged this history and helped to change it... The pluralitys position, I fear, would break that promise. This is a decision that the court and the nation will come to regret."

Read: PICS v. Seattle School District

Clinton v. New York (1998): Having worked in all three branches of government, Breyer seemed to enjoy delving into intergovernmental disputes. In this case, a 6-3 court struck down a president's ability to veto certain provisions of legislation approved by Congress, known as the line-item veto. Breyer wrote in dissent that nothing in the Constitution prohibited the power.

"In a sense, it skirts a constitutional edge. But that edge has to do with means, not ends. The means chosen do not amount literally to the enactment, repeal, or amendment of a law," he wrote. "Those means do not violate any basic separation-of-powers principle. They do not improperly shift the constitutionally foreseen balance of power from Congress to the president."

Read: Clinton v. New York

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Justice Stephen Breyer's notable majority opinions and dissents, from abortion to the death penalty - USA TODAY

WATERFORD LAKES, Fla. Demonstrators yelled antisemitic slurs in Waterford Lakes on Saturday.

On Sunday, drivers on I-4 spotted people with Nazi insignias over the interstate.

The demonstrations come just one week after someone distributed antisemitic fliers to beachside homes in Brevard County. People in at least five other states have found similar fliers.

People passing by the Orlando demonstrations sent Channel 9 video showing people wearing swastikas and can be heard loudly taunting others. The group demonstrating identified themselves as the National Socialist Movement.

READ: At least 6 HBCUs targeted by bomb threats

Rabbi David Kay is the chair of the Interfaith Council of Central Florida and said antisemitic isnt a surprise.

It is disconcerting for the Jewish community to say the least, he said. Unfortunately, we maybe got into the mindset in past decades that anti-Semitism had gone away. Unfortunately, I think the reality is, its always been here.

In a statement, Orange County deputies said, No arrests were made and the group left the area. The Orange County Sheriffs Office deplores hate speech in any form, but people have the first amendment right to demonstrate.

READ: Bethune-Cookman among several historically black colleges & universities to receive bomb threats

Kay said its a conflict understanding free speech and supporting the First Amendment, but not condoning hate.

Florida Highway Patrol made the demonstrators take the signs down on I-4 because there is a statue stating that its illegal to hang anything over the interstate. There are no charges pending.

READ: Osceola High School will see increased police presence Monday after gun scare on campus

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Demonstrators wearing swastikas yell antisemitic slurs in Waterford Lakes over the weekend - WFTV Orlando

The resolution passed Friday after a substantial debate, both for and against the proposal

BOISE, Idaho This article originally appeared inIdaho Press.

A Day of Tears abortion resolution passed the Idaho Senate on Friday, but only after substantial debate both for and against, centering not only on abortion but on the Constitution, religion, and the rules for lowering the American flag to half-staff.

The resolution, SR 101, sponsored by Sen. Mary Souza, R-Coeur dAlene with 12 Senate GOP co-sponsors, recognizes in perpetuity Jan. 22, the anniversary of the U.S. Supreme Courts Roe vs. Wade decision, as the Day of Tears in Idaho, and encourages Idahoans to lower flags to half-staff on that date to mourn the innocents who have lost their lives to abortion.

A similar resolution was pending in the House, but wasnt taken up on Friday.

Souza told the Senate, Since that day, nearly 62 million babies have been aborted. That is more lives than the entire population of Canada. That is more lives than the population of California, Oregon, Utah, Washington and Nevada combined. The flag-lowering, she said, is encouraged so that families may find healing.

Senate Minority Leader Michelle Stennett, D-Ketchum, read from federal law and state law on when the American flag can be ordered flown at half-staff; it can occur only at the order of the president of the United States or the governor of a state, and it can occur only for specified limited time periods.

It isnt supposed to be used for anything that we want to make a political statement about. It is not constitutional, she told the Senate. It is not the privilege of a mayor or a legislature. It is the privilege of a United States president and a state governor only.

She also cited theAmerican Legions website about display of the American flag, which states, Those individuals and agencies that usurp authority and display the flag at half-staff on inappropriate occasions are quickly eroding the honor and reverence accorded this solemn act.

Sen. Grant Burgoyne, D-Boise, quoted from the Bible and noted that various religions have differing views on when life begins, and that the United States was founded on freedom of religion, as recognized in the First Amendment. We made a solemn pact with each other in the Constitution, and that pact was that we would not attempt to use the power of government when it came to the issue of religion, he said. And we therefore have the First Amendment, and the First Amendment says that the government shall not make an establishment of religion.

And in this resolution, we take the flag, and we attempt to harness the flag that is supposed to unite us and not divide us, the symbol of our unity, and we harness it to a political cause and a religious cause, said Burgoyne, an attorney. And not only may we not do that constitutionally, I think its an extremely unwise use of the flag.

Sen. Jim Rice, R-Caldwell, also an attorney, countered, We routinely harness political issues and opinions to the flag, it happens every day that were in session. It happens every day that any legislative body in the United States is in session. It happens every time Congress meets. Its normal behavior. He also quoted from the Bible, criticized the Roe vs. Wade decision, and said hed support the resolution.

Souza, in her closing debate, said, Let me reiterate that this resolution encourages citizens to lower their flags to half-mast on Jan. 22 in remembrance every year. It is not mandatory. It is not dictated by any governmental body as a mandate. The Senate then approved the resolution on a divided voice vote.

The Idaho House had Rep. Barbara Ehardts Day of Tears resolution on its calendar Friday, but when it came up, there were only 44 representatives present in the chamber, and 10 representatives were missing because the Joint Finance-Appropriations Committee was meeting at the same time that the House convened, 8 a.m. This is common on Fridays early in the legislative session, when the House holds only a brief early-morning session and then adjourns to allow out-of-town representatives to catch early flights home for the weekend.

That prompted some conferring between Ehardt and legislative leaders, and checking of rules. House Majority Leader Mike Moyle, R-Star, said no votes can be taken when the House is missing a committee.

So Ehardt settled instead for asking for a personal privilege during the time for announcements Friday, in which she decried the Roe vs. Wade decision and expressed hope that it will soon be overturned.

A great wrong has been perpetrated on this country, Ehardt told the House, and that wrong is that 62 million babies have been lost, have been aborted. Many states are bringing resolutions similar to hers, she said.

Since it was the time for announcements, when any lawmaker may make an announcement, Rep. Lauren Necochea, D-Boise, rose next. Tomorrow is the anniversary of Roe vs. Wade, when the womens constitutional right to choose was enshrined in our Constitution, Necochea told the House. This made abortion care safer for people, and something to celebrate.

With that, the House adjourned until Monday.

This article originally appeared inIdaho Press. Read more atIdahoPress.com

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Flag rules, Constitution, religion figure in Senate debate over 'Day of Tears' abortion resolution - KTVB.com

RELIST WATCH ByJohn Elwood on Jan 20, 2022 at 5:01 pm

The Relist Watch column examines cert petitions that the Supreme Court has relisted for its upcoming conference. A short explanation of relists is available here.

Last weeks relists yielded what will likely be the last five cases to be to be argued during the current term. At this Fridays conference, the Supreme Court will thus begin the process of considering what cases to review next fall during October Term 2022.

On Tuesday, the court denied review in just one of last weeks relists, Trustees of the New Life in Christ Church v. City of Fredericksburg, 21-164, which the court had considered at eight consecutive conferences. The case involved a First Amendment challenge to the denial of a tax exemption for a church-owned property occupied by a couple whom the church designated as its ministers.Justice Neil Gorsuch dissented alone, saying he would summarily reverse the judicial decision denying the exemption.

That means all the rest of the relisted potential blockbusters are back again this week. Some have suggested the court is more likely to grant blockbusters when they wont be heard until next term, because they wont have to rush the decision in the few months remaining before the courts summer recess (or, perhaps more cynically, because theyll have longer before having to confront high-profile, politically freighted decisions). In any event, well have a better idea what is in store when we see the order list after Fridays conference.

This week we have five new relists. Four of them have something in common: They were rescheduled at least twice before the court relisted them. Whats the difference? When the Supreme Court reschedules a case, that case is moved on the courts docket from one of the justices private conferences to a later one before the justices even have the opportunity to discuss it at conference. By contrast, a relisted case is moved from one conference to another (usually the very next one) only after they have had the opportunity to discuss it at conference. Ive linked dockets ofa rescheduled caseanda relisted caseso you can see how both work.

As a practical matter, the distinction between rescheduling and relisting is great. Relisted cases particularly newly relisted ones are much more likely to be granted. Rescheduled cases, by contrast, overwhelmingly wind up being denied, sometimes with a justice writing an opinion respecting denial. So its unusual to have so many cases moving from the unhappy status of serial rescheduling to the happy status of being relisted.

Most noteworthy of the formerly rescheduled cases is McCarthy v. Pelosi, 21-395 heck, the caption alone should raise some eyebrows. Because of the public health emergency of the COVID-19 pandemic, the House of Representatives in May 2020 for the first time ever allowed absent members to delegate another member to vote on their behalf. House Minority Leader Kevin McCarthy, R-Calif., and other representatives filed suit arguing that the Constitution requires in-person congressional voting. The district court and U.S. Court of Appeals for the District of Columbia Circuit rejected these claims on the ground that the Constitutionsspeech-or-debate clauseprohibits judicial review of legislative actions such as voting. In his petition, McCarthy maintains that the clause does not foreclose all judicial review and that other constitutional provisions, such as thequorum clause, indicate that physical attendance is a constitutional requirement.

Gordon College v. DeWeese-Boyd, 21-145, involves the First Amendment-based ministerial exception, most recently seen in Our Lady of Guadalupe School v. Morrissey-Berru, under which employees deemed ministers of religious institutions are not covered by various employment and discrimination laws. This case involves Margaret DeWeese-Boyd, an associate professor of social work at Gordon College, a private Christian liberal arts college in Wenham, Massachusetts. The Massachusetts Supreme Judicial (is there any other kind?) Court held that DeWeese-Boyds duties as an associate professor of social work differ significantly from cases where courts have applied the ministerial exception, as she did not teach religion or religious texts, lead her students in prayer, take students to chapel services or other religious services, deliver sermons at chapel services, or select liturgy, which the court concluded have been important factors in the Supreme Courts functional analysis of who is a minister. Gordon College seeks review, arguing that all of its professors are Christian educators who are used to promote the Christian mission through teaching, scholarship, and service. The case has already been rescheduled three times, clearly indicating its on at least one of the justices radar.

Next up is Texas v. Commissioner of Internal Revenue, 21-379, which has been rescheduled twice. In 1981, Congress passed a statute requiring that reimbursement rates paid to organizations for managing state Medicaid plans must be actuarially sound. In 2002, the Centers for Medicare & Medicaid Services promulgated a regulation identifying three criteria that [a]ctuarially sound payments must satisfy: the payment amounts must [h]ave been developed in accordance with generally accepted actuarial principles; those amounts must be appropriate for the populations to be covered, and the services to be furnished; and, at issue here, the payment amounts must [h]ave been certified, as meeting th[ose] requirements , by actuaries who meet the qualification standards established by the American Academy of Actuaries and follow the practice standards established by the Actuarial Standards Board. The actuarial board did not adopt a binding definition until 2015 13 years after CMS promulgated the regulation.

Soon afterwards, the states of Texas, Indiana, Kansas, Louisiana, and Nebraska filed suit, arguing that the definition that the actuarial group adopted foist[ed] nearly $500 million of taxes onto the states in just three years because of a fee that the Affordable Care Act imposed (but which was repealed in 2019). The district court granted the states summary judgment, concluding that the actuarial-certification rule is an impermissible delegation of legislative power and exceeded CMS statutory authority. The U.S. Court of Appeals for the 5th Circuit reversed in relevant part, rejecting the states nondelegation challenge; the court also concluded other claims were time-barred because the states acted more than a decade after CMS promulgated the rule. Five judges dissented from the denial of rehearing en banc.

Before the Supreme Court, the states argue that an agency rule delegating rulemaking authority to a private entity violates the nondelegation doctrine, and that the statute of limitations applicable to a challenge to an agency rule that delegates rulemaking authority to a private entity should start running not when the agency delegates the authority, but when the private entity exercises the delegated authority.

Axon Enterprise, Inc. v. Federal Trade Commission, 21-86, involves the manufacturer of the law-enforcement device immortalized in the formerly trademarked phrase, Dont tase me, bro! After Axon Enterprise acquired a competitor, it found itself subjected to antitrust review by the Federal Trade Commission. The company faced a series of demands from the FTC it viewed as unreasonable. Facing the prospect of litigating the agencys antitrust enforcement action before FTC administrative law judges, who are insulated from removal by double for-cause restrictions (meaning that both the ALJs and their supervisors are subject to for-cause removal restrictions), a structure that the Supreme Court held unconstitutional in Free Enterprise Fund v. Public Company Accounting Oversight Board. Rather than go through an administrative enforcement process it considered unacceptable, Axon filed suit in district court seeking to enjoin FTC proceedings as unconstitutional. That lawsuit focused on constitutional issues collateral to the underlying antitrust issues.

The district court dismissed the suit for want of jurisdiction, concluding that Congress had implicitly precluded district-court jurisdiction over such actions by creating an alternative review scheme that bypasses district courts and vests judicial review of FTC cease-and-desist orders directly in the courts of appeals. A divided panel of the U.S. Court of Appeals for the 9th Circuit affirmed. The majority noted that every other circuit that has addressed a similar issue has concluded that district courts lack jurisdiction. But even the majority acknowledged that, [a]s the dissent cogently points out, it makes little sense to force a party to undergo a burdensome administrative proceeding to raise a constitutional challenge against the agencys structure before it can seek review from the court of appeals, and it said that if the court were writing on a clean slate, [it] would agree with the dissent. Judge Patrick Bumatay, in dissent, argued that district courts properly have jurisdiction over certain due process and equal protection challenges Axon asserted, as well as over its constitutional challenges to the tenure protections afforded to FTC ALJs. Before the Supreme Court, Axon argues as a statutory matter that Congress did not deprive district courts of jurisdiction over such claims, and argues that the structure of the FTC, including its dual-layer for-cause removal restrictions for ALJs, violates the Constitution.

Last up: Looks like Oklahoma will have to update its environmental impact statement for its blizzard of petitions seeking to overrule the Supreme Courts decision in McGirt v. Oklahoma holding that eastern Oklahoma remains a Native American reservation, because there is yet another relisted case raising the issue: Oklahoma v. Perales, 21-704. And just for the record, in addition to its 34 relisted petitions, Oklahoma has still more petitions raising the very same issue that are scheduled to be considered at conference for the first time this Friday. If the relists continue, those cases will be mentioned in future installments.

Thats all for this week. Until next time, stay safe!

Axon Enterprise, Inc. v. Federal Trade Commission, 21-86Issues: (1) Whether Congress impliedly stripped federal district courts of jurisdiction over constitutional challenges to the Federal Trade Commissions structure, procedures, and existence by granting the courts of appeals jurisdiction to affirm, enforce, modify, or set aside the Commissions cease-and desist orders; and (2) whether, on the merits, the structure of the Federal Trade Commission, including the dual-layer for-cause removal protections afforded its administrative law judges, is consistent with the Constitution.(rescheduled before the Nov. 5, Nov. 12, Nov. 19, Dec. 3, Dec. 10 and Jan. 7 conferences; relisted after the Jan. 14 conference)

Gordon College v. DeWeese-Boyd, 21-145Issues: (1) Whether professors at religious colleges perform ministerial functions when the college exists to spread its faith, and the college requires faculty, as a primary component of their position, to integrate Christian doctrine into their work and academic disciplines, engage in teaching and scholarship from a decidedly religious perspective, and serve as advisors and mentors for student spiritual formation; and (2) whether the First Amendment requires courts to defer to the good-faith characterization of a ministerial position by a religious organization or church.(rescheduled before the Dec. 3, Dec. 10 and Jan. 7 conferences; relisted after the Jan. 14 conference)

Texas v. Commissioner of Internal Revenue, 21-379Issues: (1) Whether an agency rule delegating rulemaking authority to a private entity violates the nondelegation doctrine; and (2) whether the statute of limitations applicable to a challenge to an agency rule that delegates rulemaking authority to a private entity starts to run when the agency delegates the authority or when the private entity exercises the delegated authority.(rescheduled before the Dec. 10 and Jan. 7 conferences; relisted after the Jan. 14 conference)

McCarthy v. Pelosi, 21-395Issue: Whether the speech-and-debate clause forecloses judicial review of the constitutionality of the proxy voting resolution in this action against the speaker of the house, the clerk and the sergeant-at-arms; and (2) whether the U.S. House of Representatives resolution allowing members to cast floor votes by proxy is unconstitutional.(rescheduled before the Dec. 10 and Jan 7 conferences; relisted after the Jan. 14 conference)

Oklahoma v. Perales, 21-704Issue: Whether McGirt v. Oklahoma should be overruled.(relisted after the Jan. 14 conference)

Knight v. Pennsylvania, 20-7805Issue: Whether a state may require a defendant to present an IQ score of 75 or below that was documented prior to age 18 to have his intellectual disability claim considered as a basis to disqualify him from the death penalty, when this requirement is contrary to clinical standards for diagnosis and contrary to multiple decisions where the Supreme Court has granted relief to petitioners who lacked any such documentation.(relisted after the Oct. 29, Nov. 5, Nov. 12, Nov. 19, Dec. 3, Dec. 10, Jan. 7 and Jan. 14 conferences)

Holcombe v. Florida, 21-53Issues: (1) Whether a criminal defendant establishes an actual conflict of interest that adversely affects counsels representation when the attorney engages in joint and dual representation i.e., simultaneously representing both the defendant and a key prosecution witness during a trial; (2) whether the presumed prejudice conflict of interest standard applies when the prosecutor (rather than defense counsel) puts the trial judge on notice at the beginning of a trial of defense counsels conflict of interest a conflict which is described by the prosecutor as not waivable and the judge thereafter fails to inquire into the nature and scope of the conflict.(relisted after the Oct. 29, Nov. 5, Nov. 12, Nov. 19, Dec. 3, Dec. 10, Jan. 7 and Jan. 14 conferences)

Arrow Highway Steel, Inc. v. Dubin, 21-27Issues: (1) Whether the dormant commerce clause may be used to invalidate the application of a states neutral, non-discriminatory tolling statute to defeat the enforcement of a former residents stipulated judgment where there is no showing of any burden on or discrimination against interstate commerce; and (2) whether the dormant commerce clause applies to a state statute with no intended or demonstrated effect on interstate commerce.(relisted after the Dec. 3, Dec. 10, Jan. 7 and Jan. 14 conferences)

Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 20-1199Issues: (1) Whether the Supreme Court should overruleGrutter v. Bollingerand hold that institutions of higher education cannot use race as a factor in admissions; and (2) whether Harvard College is violatingTitle VIof the Civil Rights Act by penalizing Asian-American applicants, engaging in racial balancing, overemphasizing race and rejecting workable race-neutral alternatives.CVSG: 12/8/2021(relisted after the Jan. 7 and Jan. 14 conferences)

Students for Fair Admissions, Inc. v. University of North Carolina, 21-707Issues: (1) Whether the Supreme Court should overruleGrutter v. Bollingerand hold that institutions of higher education cannot use race as a factor in admissions; and (2) whether a university can reject a race-neutral alternative because it would change the composition of the student body, without proving that the alternative would cause a dramatic sacrifice in academic quality or the educational benefits of overall student-body diversity.(relisted after the Jan. 7 and Jan. 14 conferences)

Wisconsin v. Jensen, 21-210Issues: (1) Whether a persons statement expressing fear about a possible future crime is testimonial under the Sixth Amendments confrontation clause; and (2) whether, when a person reports ongoing psychological domestic abuse and expresses fear about future physical harm, the persons statement aimed at ending an ongoing emergency is non-testimonial.(relisted after the Jan. 7 and Jan. 14 conferences)

Haaland v. Brackeen, 21-376Issues: (1) Whether various provisions of the Indian Child Welfare Act of 1978 namely, the minimum standards ofSection 1912(a), (d), (e), and (f); the placement-preference provisions ofSection 1915(a) and (b); and the recordkeeping provisions ofSections 1915(e)and1951(a) violate the anticommandeering doctrine of the 10th Amendment; (2) whether the individual plaintiffs have Article III standing to challenge ICWAs placement preferences for other Indian families and for Indian foster home[s]; and (3) whether Section 1915(a)(3) and (b)(iii) are rationally related to legitimate governmental interests and therefore consistent with equal protection.(relisted after the Jan. 7 and Jan. 14 conferences)

Cherokee Nation v. Brackeen, 21-377Issues: (1) Whether the en banc U.S. Court of Appeals for the 5th Circuit erred by invalidating six sets of Indian Child Welfare Act provisions 25 U.S.C. 1912(a), (d), (e)-(f),1915(a)-(b), (e), and1951(a) as impermissibly commandeering states (including via its equally divided affirmance); (2) whether the en banc 5th Circuit erred by reaching the merits of the plaintiffs claims that ICWAs placement preferences violate equal protection; and (3) whether the en banc 5th Circuit erred by affirming (via an equally divided court) the district courts judgment invalidating two of ICWAs placement preferences, 25 U.S.C. 1915(a)(3), (b)(iii), as failing to satisfy the rational-basis standard ofMorton v. Mancari.(relisted after the Jan. 7 and Jan. 14 conferences)

Texas v. Haaland, 21-378Issues: (1) Whether Congress has the power under the Indian commerce clause or otherwise to enact laws governing state child-custody proceedings merely because the child is or may be an Indian; (2) whether the Indian classifications used in theIndian Child Welfare Actand its implementing regulations violate the Fifth Amendments equal-protection guarantee; (3) whether ICWA and its implementing regulations violate the anticommandeering doctrine by requiring states to implement Congresss child-custody regime; and (4) whether ICWA and its implementing regulations violate the nondelegation doctrine by allowing individual tribes to alter the placement preferences enacted by Congress.(relisted after the Jan. 7 and Jan. 14 conferences)

Brackeen v. Haaland, 21-380Issues: (1) Whether theIndian Child Welfare Act of 1978s placement preferences which disfavor non-Indian adoptive families in child-placement proceedings involving an Indian child and thereby disadvantage those children discriminate on the basis of race in violation of the U.S. Constitution; and (2) whether ICWAs placement preferences exceed Congresss Article I authority by invading the arena of child placement the virtually exclusive province of the States, as stated inSosna v. Iowa and otherwise commandeering state courts and state agencies to carry out a federal child-placement program.(relisted after the Jan. 7 and Jan. 14 conferences)

Sackett v. Environmental Protection Agency, 21-454Issue: WhetherRapanos v. United States in which the Supreme Court held that theClean Water Actdoes not regulate all wetlands, but without a majority opinion explaining why that is so should be revisited to adopt the pluralitys test for wetlands jurisdiction under the Clean Water Act, in which only those wetlands that have a continuous surface water connection to regulated waters may themselves be regulated.(relisted after the Jan. 7 and Jan. 14 conferences)

National Pork Producers Council v. Ross, 21-468Issues: (1) Whether allegations that a state law has dramatic economic effects largely outside of the state and requires pervasive changes to an integrated nationwide industry state a violation of the dormant commerce clause, or whether the extraterritoriality principle described in the Supreme Courts decisions is now a dead letter; and (2) whether such allegations, concerning a law that is based solely on preferences regarding out-of-state housing of farm animals, state a claim underPike v. Bruce Church, Inc.(relisted after the Jan. 7 and Jan. 14 conferences)

303 Creative LLC v. Elenis, 21-476Issues: (1) Whether applying a public-accommodation law to compel an artist to speak or stay silent, contrary to the artists sincerely held religious beliefs, violates the free speech or free exercise clauses of the First Amendment; and (2) whether a public-accommodation law that authorizes secular but not religious exemptions is generally applicable underEmployment Division v. Smith, and if so, whether the Supreme Court should overruleSmith.(relisted after the Jan. 7 and Jan. 14 conferences)

Love v. Texas, 21-5050Issues: (1) Whether Texas Court of Criminal Appeals, the only court of last resort reviewing direct appeals in death penalty cases, has decided an important federal question concerning a racially biased juror being allowed on a capital death penalty jury in violation of petitioner Kristopher Loves rights under the Sixth and 14th Amendments to the United States Constitution; and (2) whether Texas Court of Criminal Appeals, the only court of last resort reviewing direct appeals in death penalty cases, has decided an important federal question concerning a racially biased juror in a way that conflicts with relevant decisions of the Supreme Court in violation of Loves rights under the Sixth and 14th Amendments to the United States Constitution.(relisted after the Jan. 7 and Jan. 14 conferences)

Oklahoma v. Brown, 21-251;Oklahoma v. Kepler, 21-252;Oklahoma v. Hathcoat, 21-253;Oklahoma v. Mitchell, 21-254;Oklahoma v. Jackson, 21-255;Oklahoma v. Starr, 21-257; Oklahoma v. Davis, 21-258;Oklahoma v. Howell, 21-259;Oklahoma v. Bain, 21-319;Oklahoma v. Perry, 21-320;Oklahoma v. Johnson, 21-321;Oklahoma v. Harjo, 21-322;Oklahoma v. Spears, 21-323;Oklahoma v. Grayson, 21-324;Oklahoma v. Janson, 21-325;Oklahoma v. Sizemore, 21-326;Oklahoma v. Ball, 21-327;Oklahoma v. Epperson, 21-369;Oklahoma v. Stewart, 21-370;Oklahoma v. Jones, 21-371 ;Oklahoma v. Cooper, 21-372;Oklahoma v. Beck, 21-373;Oklahoma v. Jones, 21-451;Oklahoma v. McCombs, 21-484;Oklahoma v. McDaniel, 21-485;Oklahoma v. Shriver, 21-486;Oklahoma v. Martin, 21-487;Oklahoma v. Fox, 21-488;Oklahoma v. Cottingham, 21-502;Oklahoma v. Martin, 21-608Issue: Whether McGirt v. Oklahoma should be overruled.(relisted after the Jan. 7 and Jan. 14 conferences)

Oklahoma v. Williams, 21-265; Oklahoma v. Mize, 21-274;Oklahoma v. Castro-Huerta, 21-429Issues: (1) Whether a state has authority to prosecute non-Indians who commit crimes against Indians in Indian country; and (2) whether McGirt v. Oklahoma should be overruled.(relisted after the Jan. 7 and Jan. 14 conferences)

See more here:
Revenge of the rescheduled cases: Congressional proxy voting, the ministerial exception, and more - SCOTUSblog

Over the past week, Boston Mayor Michelle Wu has been caught up in two seemingly unrelated controversies. What they have in common is that they touch on important First Amendment issues.

In the first instance, her office sent out a poorly worded advisory asking that reporters keep their distance from homeless people while city workers removed their encampment at Massachusetts Avenue and Melnea Cass Boulevard. In the second, hate-spewing demonstrators have been gathering in front of Wus house in Roslindale to protest a requirement that city employees be vaccinated against COVID-19 and that restaurants and other businesses mandate vaccines.

The media guidelines were sent out on Jan. 11, the day before the city cleared the area around Mass. and Cass. Reporters and photographers were advised to stay 50 feet away from individuals; to refrain from capturing images of individuals faces; and to allow enough space for outreach workers to engage with individuals in private.

The 50-foot request was later amended to 10 feet an improvement, but still not enough for reporters to walk up to people and ask if theyd like to be interviewed. As soon as I saw the guidelines, I emailed the press office and said You cant tell us how to report, Boston Globe columnist and associate editor Adrian Walker wrote in a public Facebook comment.

Kelly McBride, senior vice president and chair of the Craig Newmark Center for Ethics and Leadership at the Poynter Institute, also took a dim view of the advisory.

Im always wary when government officials start telling the press how to behave ethically, she said in an emailed comment. This may sound shocking, but sometimes government folks are more interested in avoiding accountability for their actions and also making themselves look good than they are in nurturing a free press that serves the public interest.

Despite liberal use of the word please, its unclear whether City Hall intended the guidelines to be mandatory; the mayors press office declined to comment. In any case, it doesnt appear that there were any serious efforts at enforcement, as reporters were able to interview homeless people while outreach workers were moving through the area.

City officials came over to me and asked me not to take pictures of peoples faces, which I wouldnt have done anyway without permission but I appreciated they also told me to back up and give space, but mostly I was fine interviewing people, my GBH News colleague Tori Bedford told me by email. She added: I think the intention was to prevent the callous treatment of people that occurred last time, but it neglected how the press acts as an accountability agent to witness any callous treatment by the city and its not the citys place to tell us how to do our jobs on a public street.

As Bedford said, there have been reports of journalists acting insensitively toward homeless people during previous operations at Mass. and Cass. But its crucial that the media be allowed access to make sure that city workers are treating people with respect as well. Besides, the encampment was on public property, and attempting to restrict where reporters could go and what they could do was a violation of the First Amendment's guarantee of freedom of the press.

Paul Bass, the editor and co-founder of the New Haven Independent, made another important point in a public comment: the guidelines denied agency to the very people the city was attempting to protect. I agree such rules are outrageous, he wrote. They are also patronizing and controlling: homeless people, like anyone else, have the right to decide if they want to tell their story!

Veteran political analyst Jon Keller of WBZ-TV (Channel 4) said Mayor Wus advisory appeared to go beyond anything he had seen from Mayors Tom Menino or Marty Walsh.

Without knowing for sure, I suspect that they didnt want any embarrassing feedback from these interactions to be broadcast, Keller said. It had the whiff of something drawn up by a PR or a press aide with the mayors image and the image of her administration foremost in mind. Now, that may well be their job as they see it, but this is not the right time or situation.

Not to make too much of this despite the admonition to keep 10 feet away, the media were not prevented from doing their jobs. But if city officials had problems with the way individual journalists had behaved on previous occasions, they should have dealt with them directly rather than send out a blanket set of rules.

***

How much abuse should elected officials have to put up with when theyre at home with their families? In recent days, a small group of bullhorn-wielding protesters has been gathering in front of Mayor Wus house in Roslindale to denounce her vaccination mandate. Wu lives in a two-family home with her husband, her two children and her mother.

As Wu tweeted over the weekend, the rhetoric has become increasingly ugly. Theyve shouted on megaphones that my kids will grow up without a mom bc [because] Ill be in prison, she said. Yesterday at dinner my son asked who elses bday [birthday] it was bc the AM chant was Happy birthday, Hitler.

In an ideal world, protesters would restrict their activities to public venues and events and leave political figures alone when theyre home. But social mores are breaking down and incivility is on the rise. And its not just Wu. Gov. Charlie Bakers home in Swampscott has been the site of multiple protests. There has even been speculation that the protests were among the reasons Baker decided not to seek a third term. Certainly Wus and Bakers neighbors didnt sign up for such abuse.

The challenge is that any action against such demonstrations would clash with First Amendment guarantees of freedom of speech, assembly and petitioning for the redress of grievances. The protesters are, after all, on public streets.

State Rep. Steven Howitt, a Seekonk Republican, has filed legislation to ban demonstrations within 100 yards of an elected officials home. If such a bill were to become law, theres little doubt that it would face a constitutional challenge. But its also possible that a narrowly drawn statute focusing on noise and intrusiveness would pass muster as a content-neutral time-place-and-manner restriction, according to the noted civil-liberties lawyer Harvey Silverglate.

The alternative would be to move high-profile politicians into official residences away from residential neighborhoods. That would be a shame. It strikes me as a good thing that our leaders live among us, even if the benefit is mainly symbolic. Sadly, that may no longer be possible.

GBH News contributor Dan Kennedys blog, Media Nation, is online at dankennedy.net.

Link:
The First Amendment and Mayor Wu: What press restrictions and vile demonstrations have in common - wgbh.org