Category Archives: First Amendment

The Reporters Committee for Freedom of the Press and a coalition of 55 media organizations are urging a congressional committee investigating the Jan. 6 attack on the U.S. Capitol to withdraw its subpoena for a photojournalists telephone toll records.

In late November, the U.S. House Select Committee to Investigate the January 6th Attack on the United States Capitol subpoenaed the cell phone provider of freelance photojournalist Amy Harris, seeking data on calls and texts she made during a three-month period around the time of the insurrection. On Dec. 15, Harris sued the committee over its demand for her records, arguing that her communications are protected by the First Amendment, common law and the District of Columbias shield law.

In a letter sent to the committees chair and vice chair on Dec. 22, the media coalition stresses the dangers of forcing Verizon Wireless to disclose Harriss call records, warning that they could reveal her confidential sources. That information is particularly sensitive, the letter states, as the inability of a journalist to maintain the confidentiality of sources means sources will be less likely to come forward, which itself limits the free flow of information to the public.

The letter notes that the U.S. Department of Justice recently barred DOJ officials from seizing the same kind of information the committee seeks in the wake of several recent disclosures that the Justice Department under the Trump administration authorized the seizure of reporters phone and email records as part of leak investigations.

Constitutional protections for newsgathering reflect the reality, well known to the framers, that the press itself preserves democratic governance by promoting an informed electorate. It cannot do so if sources are concerned that speaking to the press will expose them to the burdens of a government investigation, the media coalitions letter states. The Select Committees subpoena threatens to compromise that independence, and we strongly urge you to withdraw it.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.

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RCFP: Congress must withdraw subpoena for photojournalist's records - Reporters Committee for Freedom of the Press

But while the committee may ultimately uncover sufficient evidence to indict Trump, it does not appear that they have done so thus far. Rather than using the exact language of the statute, she inserted four words that reveal the scope of the committees investigation but also suggest that the committee knows it might fall short of the bar for criminal prosecution. Did Donald Trump, through action or inaction [emphasis added], corruptly seek to obstruct or impede Congress official proceeding to count electoral votes? Cheney asked as she urged colleagues to hold Meadows in contempt of Congress for refusing to be deposed.

The key word used by Cheney is inaction. Thus far the evidence made public by the committee indicates that in the face of a violent attack on the U.S. Capitol, Trump did nothing. Cheney and others argue that Trump violated his oath of office, in which he swore to preserve, protect and defend the Constitution, which requires him to take care that the laws be faithfully executed. There can be little dispute that Trump failed to do so. But a president violating his oath of office, in itself, does not constitute a federal crime.

In fact, our criminal laws rarely punish people for not taking action, and with good reason. Our criminal laws were designed to punish people who knowingly engage in wrongdoing, not to punish people who showed mere indifference or inadvertence when others were engaged in wrongdoing. A public official who does nothing to stop a heinous crime may be incompetent or evil, but we dont hold mayors or governors criminally responsible for deaths or riots that they fail to prevent, even if they knew in advance it might happen. Charges against Trump based merely on his inaction would be unprecedented.

That doesnt mean Trump has no criminal liability. What Cheney aims to prove is that Trump is responsible for the crimes that were committed by the insurrectionists who stormed the Capitol. Since Trump didnt storm the barricades himself, he could be charged if he knew about the attack and took active steps to help make it succeed. That would establish what is called aiding and abetting the insurrection.

Or the evidence could indicate that Trump conspired with others to orchestrate the attack on the Capitol. A conspiracy requires proof of an agreement to commit the crime. The agreement doesnt need to be written down, or even said out loud, but it must be evident based on the defendants words and actions.

For example, Meadows could testify that Trump coordinated with others to direct the attack as part of a scheme to stop the certification of the electoral votes. Meadows, if he testifies, might be able to recount what the former president was told, and what he said in response. Perhaps he heard Trump promise rally organizers that he would not call out the National Guard, or that he would pardon them, if they directed his supporters to breach the Capitol and storm Congress. For all we know, then-Vice President Mike Pences national security adviser Keith Kellogg, who was in the Oval Office that day, already provided testimony along those lines.

But that isnt what the committee has revealed thus far. The PowerPoints and texts suggesting disturbing plans to subvert and overturn our democracy do not resemble the actions Trump actually took in January. Though we know Trump pressured Pence repeatedly to falsely assert that electoral votes certified by the states were invalid, Trump did not do many of the most outrageous things proposed by the PowerPoint. He did not declare a state of emergency or seize ballot boxes, for instance.

What Trump did was reprehensible. He entertained anyone from conspiracy theorists to rogue Justice Department lawyers who was willing to hatch schemes to steal the election and undermine our democracy. But merely repeating to Pence what he had been told by dishonest lawyers is not enough to land Trump in prison. Neither is merely entertaining wild ideas that he did not put into action.

Of course, one thing Trump actually did was speak at the now-infamous Stop the Steal rally shortly before the attack. Some have argued that his words there constitute incitement. This is another crime that is rarely charged because the U.S. Supreme Court held in 1969 that the First Amendment protects speech unless it incites imminent lawless action. Trumps words arguably fall within this narrow definition, but the language he used was vague and at times suggested that the audience act peacefully. An incitement prosecution would undoubtedly face a difficult First Amendment legal challenge that the Justice Department is unlikely to take on.

To establish what Cheney and others want to prove, more is needed. They may eventually reach that goal, but right now it doesnt look like theyre as close as many commentators would like to think.

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Opinion | The Bar for Charging Trump with Obstructing Congress Is Higher Than Many Realize - POLITICO

Three days after Woods pulled back from his earlier ruling, the Times had resumed publishing details of how Project Veritas obtained the purloined diary and used extortionate methods to demand an interview with Joe Biden during his campaign. The Times was restricted from publishing its findings previously because Woods ruled some of the newspapers information fell under the rubric of attorney-client privilege. On Friday, the Times provided new details of the subterfuge behind the apparently stolen diary, now the subject of an FBI investigation.

Ashley Biden had been under treatment in Florida for addiction and had kept a diary at the time. She left a house she was sharing with a friend in Del Ray Beach, Florida, to join the Biden family in Pennsylvania in the presidential campaigns final days. She left behind a duffel bag and other belongings in the Florida house, including her diary. Another person found the dairy, which was later acquired by Project Veritas and presumably perused for juicy details to embarrass Biden before the election.

Project Veritas chief legal officer wrote to Biden and his campaign on Oct. 16, 2020, demanding an interview. If Veritas had not received a reply by Oct. 20, we will have no choice but to act unilaterally and reserve the right to disclose that you refused our offer to provide answers to the questions raised by your daughter in the diary, legal officer Jered T. Ede wrote, according to the Times. Those details smacked of attempted extortion using an apparently stolen diary more than adequate evidence to warrant an FBI investigation.

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Editorial: Judge retreats from ruling that clearly ran afoul of the First Amendment - STLtoday.com

Michael Raffety

When this column appears Dec. 20 it will be two days before German Gen. Heinrich Frieherr von Luttwitz sent a party under a truce flag asking the American 101st Airborne forces at Bastogne to surrender.

To the U.S.A. Commander of the encircled town of Bastogne.

The fortune of war is changing. This time the U.S.A. forces in and near Bastogne have been encircled by strong German armored units. More German armored units have crossed the river Ourthe near Ortheuville, have taken Marche and reached St. Hubert by passing through Hompre-Sibret-Tillet. Libramont is in German hands.

There is only one possibility to save the encircled U.S.A. troops from total annihilation: that is the honorable surrender of the encircled town. In order to think it over a term of two hours will be granted beginning with the presentation of this note.

If this proposal should be rejected one German Artillery Corps and six heavy A. A. Battalions are ready to annihilate the U.S.A. troops in and near Bastogne. The order for firing will be given immediately after this two hours term.

All the serious civilian losses caused by this artillery fire would not correspond with the well-known American humanity.

The German Commander.

According to those present when McAuliffe received the German message, he read it, crumpled it into a ball, threw it in a wastepaper basket and muttered, Aw, nuts. The officers in McAuliffes command post were trying to find suitable language for an official reply when Lt. Col. Harry Kinnard suggested that McAuliffes first response summed up the situation pretty well and the others agreed. The official reply was typed and delivered by Col. Joseph Harper to the German delegation.

It was as follows:

To the German commander

NUTS!

From the American commander

Gen. George Pattons 4th Armored Division relieved the siege of Bastogne on Dec. 30.

Patton awarded McAuliffe the Distinguished Service Cross. He later received the Army Distinguished Service Medal twice, the Silver Star and the Legion of Merit. He was later promoted to major general. His 101st Airborne crossed the Rhine and elements of it later crossed the Brenner Pass, meeting up with American troops from the Italian campaign.

McAuliffe didnt swear. Nuts was his favorite expletive.

Dec. 15 the Mountain Democrat published the Bill of Rights on its 230th anniversary.

When I was editor there was a guy named Tom (cant remember his last name) who always called me up and reminded me to publish the Bill of Rights. That was his thing.

Without this document we wouldnt have any rights; the government would have all the rights.

There is a reason the most important rights are listed first. The First Amendment actually lists six rights:

Thats a lot of rights in just one amendment.

Overnight Dec. 14 it rained like crazy. Then it got quiet and the satellite TV signal became lost. Thats when I knew it had snowed. At 5:30 a.m. I turned on the floodlight, got a flashlight, broom and my flip flops and brushed the snow off the satellite dish.

We could wind up with a white Christmas. The last time there was a white Christmas here we missed it, having spent Christmas in Yosemite.

Michael Raffety is a retired editor of the Mountain Democrat and a resident of the Placerville area.

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Belltower: The siege of Bastogne and the 1st Amendment's rights - Mountain Democrat

For many of us, apples represent not just knowledge, but a forbidden flavor of it that leads to ruin. Maybe the company did a bit of soothsaying when they chose it to represent them, considering that an employee, Ashley Gjovik, recently whistleblew about the companys invasive surveillance practices and get this toxic work environment?

Gjovik also alleged that the company violated the National Labor Relations Act (NLRA) by retaliating against her for voicing concerns about workplace safety stemming from the fact that Apples office building in Sunnyvale, California, is situated on top of an Environmental Protection Agency (EPA)-designated Superfund site, an area contaminated by hazardous industrial waste that issupposed to have been cleaned up and containedif humans are in the vicinity. If Gjovik prevails, the NLRB could issue a ruling curtailing employers abilities to surveil workers and chill their speech.

Gjovik has filed numerous other complaints with several environmental and workplace safety regulators, and the Securities and Exchange Commission (SEC), and has been meticulous in documenting her experience, as demonstrated byher personal website.

Dear Lord, I miss the days when describing your work environment as toxic was a shorthand for nosy cubicle mates. If a major global company is able to get away with building their offices on a superfund site, in California of all places, what does that mean for the rest of us? And even if the co-workers are pleasant and the Apple headquarters frequently restocks on their K-Cups, I doubt that their insurance coverage would make up for having a 9-5 atop pollutants.

It shouldnt be a surprise that Apple is in hot water for spying on its employees given that theyve been accused of spying on their customers too.

But lets not forget the first prong of her complaint, regarding Apple spying on its employees.

Gjovik cited the companys handbook, which reserves the right to search employees work equipment and their personal devices to protect Apple confidential and sensitive information. The company defines its proprietary information to include compensation, training, recruiting, and other human resource information.

Under federal labor law, all employeeshave the rightto discuss their working conditions for the purpose of collective bargaining or other mutual aid or protection. The NLRBhas ruledthat management cannot spy on employees exercising their rights.

Of course this is horrible in the facially-illegal-part-of-the-employee-handbook way, but lets be realistic here. Apple employs a lot of people in California. Imagine being the unlucky guy (or gal, were egalitarian here) who gets their search history leaked after a suspected leak of details on the iPhone 36. Would I want that gossip? Yes, but I wouldnt want that happening to me. Everyone worth their weight in legal salt knows that First Amendment restrictions on speech dont really apply to private corporations, but things like this make me wish that the Fourth Amendment did.

Apple Employee Blows Whistle on Illegal Spying and Toxic Working Conditions [Truthout]

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord in the Facebook groupLaw School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim,a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email atcwilliams@abovethelaw.comand by tweet at@WritesForRent.

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I Know A Good Apple Is Tart, But Exploitation Is Bitter - Above the Law

OKLAHOMA CITY As Christian supporters Monday erected what is believed to be the states first nativity scene in recent years inside the state Capitol, one watchdog group warned that the state must also now allow other displays on the same topic in the future.

Alex Hilton, the Oklahoma resident who set up the crche, said its important to have one on state Capitol grounds because Jesus Christ is the reason of Christmas, and that its a good way to bolster public support for Christianity, which is increasingly under assault by an array of different forces. He also said the display counteracts the false and historical narrative about the separation of church and state.

Weve grown accustomed to this false idea that the Establishment Clause means that there can be no prayer in public schools, there can be no nativity scenes or Ten Commandment monuments at state Capitol buildings, and thats just totally ahistorical, Hilton said.

The display is part of a partnership by the Thomas More Society, which is a not-for-profit law firm based in Chicago, and the American Nativity Scene campaign to help private groups display scenes from the night of Christs birth on government property across the country.

The partnership said Oklahoma is among seven states in 2021 that are expected to feature nativity displays for the first time. Other states include Kentucky, Pennsylvania, Louisiana, and West Virginia.

Oklahomas display, which is located in the second floor Rotunda, is about 4 feet high and about 3.5 feet deep. It features figurines of Mary, Joseph, baby Jesus and an angel pinned up on the top of the manger.

Its really great, Hilton said, adding that it will be displayed through Dec. 23.

Bonnie Campo, a spokeswoman for the Office of Management and Enterprise Services, said there are several spaces within the Capitol complex that have been established as public spaces, meaning they are available for reservation by anyone.

OMES manages these spaces and is careful to comply with the First Amendment, which prohibits OMES from discriminating on the basis of viewpoint in reserving the space, she said.

Campo said the group requested the space in writing and agreed to comply with OMES rules and because the event did not conflict with any other Capitol event, their application was approved.

Chris Line, a staff attorney at the Freedom from Religion Foundation, said nativity scenes are pretty common at state Capitols across the country. The state Capitol in Madison, Wisconsin, where his group is based, has a nativity scene. But Lines organization has also put up two of its own displays, including a Founding Fathers nativity scene display, which shows the Founding Fathers around The Bill of Rights, as well as a winter solstice display.

Line said that while his organization doesnt agree that such displays are the best use of space, as long as Oklahoma chooses to allow other religions the same opportunity to set up displays, its OK.

As long as they allow other messages, similar messages, countervailing messages, on the same topic, then thats permissible, Line said.

He said by allowing the nativity scene, the state has opened itself up to having to permit other displays.

We still think that what will be better off is for them not to do that, and instead to just put up some secular things that can represent the holiday season for everyone and we all can sort of share in this time, Line said. We do of course encourage other groups to put up similar messages to try to explain this.

Line said hes an atheist who celebrates Christmastime though he doesnt believe in Jesus.

But I do love the holiday Christmas season, and it sucks that they have to try to turn (it) into this religious things and take it over when in reality they could easily just share with everyone, Line said.

The state has previously had a controversial history with erecting religious symbols on state grounds.

In 2015, the ACLU won a legal victory that forced the state to remove its large, granite Ten Commandments monument that had been installed on Capitol grounds. The states Supreme Court ruled that it violated the state Constitution, which prohibits using public funds and grounds to promote a particular faith. The monument was ultimately relocated to a private, conservative think tank.

Stinging from the courts decision, lawmakers then tried to throw out that section of the state Constitution cited by the court as requiring the monuments removal. Voters resoundingly defeated that plan.

Line said that with the Ten Commandments case, Oklahoma lawmakers ran afoul of the Constitution because they didnt allow other religions to set up their own similar statues on Capitol grounds.

Janelle Stecklein covers the Oklahoma Statehouse for CNHI's newspapers and websites. Reach her at jstecklein@cnhinews.com.

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Creche erected in state Capitol is legal as long as state opens venues to other - Claremore Daily Progress

In June 1986, at an otherwise nondescript Attorney Generals Conference on Economic Liberties, Antonin Scalia made an iconic sales pitch.

Originalism a judicial theory holding that the Constitution should be interpreted in line with the framers thinking needed rebranding, he told the conference.Originalists, he said, ought to campaign to change the label from the doctrine of original intent to the doctrine of original meaning.

In other words, instead of trying to intuit what James Madison or Alexander Hamilton may have intended, rely on what the public would have understood their words to mean at the time, using contemporary dictionaries and news coverage among other sources.

Can looking back help America move forward, judicially? Thats the question facing originalism, a legal theory that holds more power than ever and could launch a shift in law as dramatic as the Warren and Burger courts.

Months later, then-Judge Scalia would be appointed to the U.S. Supreme Court. He would become a pioneer of original meaning originalism, and constitutional law would never be the same again.

His new wording has come to redefine the family of theories that comprise originalism. And it hints at the complexity and evolution underlying what seems, at first glance, a straightforward judicial philosophy.

It has also never had more influence over the rights of Americans than it does now. Up to five Supreme Court justices could be considered originalists, and the theory is now commonplace in American courts. With high court rulings on gun rights, abortion, and religion expected in the coming year, originalism appears poised to define a new era in American constitutional rights jurisprudence. What that means for Americans, and for the court itself, remains to be seen.

Theres no question that originalism has changed constitutional law, says Franita Tolson, a professor at the University of Southern California Gould School of Law. History and text are much more of a focus than they used to be.

The history is the starting point, the text is the starting point, and I think originalism reminds us of that, she says, adding that she doesnt think the philosophy is inherently bad.

But as a society do we want to be constrained by the views of men that died 200 years ago? And more importantly, does the Constitution require that? she continues. To me thats the question: starting point versus end point.

Critics view originalism as a theory that is misleading at best, making promises of judicial restraint and impartiality that it wont deliver in practice.

But the philosophy comes in a variety of styles and flavors. Practice differs from theory, and as with any legal theory it has disagreements and flaws.

I consider [originalism] to be the natural and normal way in which anyone would interpret or at least begin to interpret a text written more than 200 years ago, says Michael McConnell, a professor at Stanford Law School and former judge on the U.S. 10th Circuit Court of Appeals.

When judges latch onto the language of the Constitution and give it their own preferred interpretation, he adds, theyre not really doing constitutional law. Theyre just doing a form of politics wearing a robe.

For her part, Justice Sonia Sotomayor, one of the Supreme Courts three liberals, appears skeptical that originalism will help bolster the courts institutional credibility. In October, a law professor asked if the theory will become increasingly untenable as the countrys makeup continues to depart significantly from the time of the framers. The lack of human rights afforded women and African Americans in the original Constitution are a glaring example. Other changes include an America that no longer identifies as majority Christian and that has legalized marriage equality and civil rights for LGBTQ Americans.

Whether and how that will lead to dissonance between what we are deciding and what the general population accepts as what the law should be, she answered, is a fascinating question.

As far back as Chief Justice John Marshall, members of the court have occasionally citedoriginal meaning as a factor in their interpretations. But as a distinct legal theory, originalism is relatively new.While Scalia may have been the most prominentproponent, its rootscan be traced back to Justice Hugo Black ironically one of the more liberal justices in Supreme Court history.

A fierce advocate of the original purpose of the Constitutions text, he made the early legal arguments for extending the Bill of Rights to the states. (Until the 1960s, the Bill of Rights protections only applied to the federal government.)

He believed in strict interpretations of the Constitution. Thus, he didnt think there is a constitutional right to privacy, or that conduct like flag burning is protected by the First Amendment. And he believed that the judiciary should act with great restraint.

Beginning in the 1970s, conservative legal scholars were very heavily influenced by Hugo Black, says Jack Balkin, a professor at Yale Law School and one of the countrys most prominent liberal originalists.

A lot of his opinions are about original intention, he adds. But conservative scholars take it in a slightly different direction.

Those decades saw the Supreme Court play a key role in expanding civil and constitutional rights, including desegregation (Brown v. Board of Education); the right to counsel for criminal defendants (Gideon v. Wainwright); and the right to abortion (Roe v. Wade). Citing Justice Black, conservatives critiqued the rulings as justices exerting their own values on the country.

A Court that makes rather than implements value choices cannot be squared with the presuppositions of a democratic society, wrote Judge Robert Bork in a 1971 law review article. To do otherwise, he continued, would be for the court to act as an institutionalized ... perpetrator of limited coups detat.

He argued that judges should restrict themselves to following the original intent of the Founders.

Justice Scalia, earlier in his career, held similar views of originalism as a mechanism for judicial restraint until his 1986 pivot from original intent to a focus on original public meaning.

There were several reasons this made sense for originalists.

The intent of historical figures like Madison and Hamilton is very difficult to discern, and sometimes doesnt even exist, says Lawrence Solum, an originalist scholar at the University of Virginia School of Law.

The [original] public meaning of the constitutional text is something that we can almost always figure out, and then apply it to contemporary circumstances, he adds.

But there was a broader, political context to the shift. By the end of the Ronald Reagan and George H.W. Bush administrations, the conservative legal movement was no longer on the outside critiquing the liberal overreach of the Warren court. It was now in power.

Old originalism thrived only in opposition, wrote originalist scholar Keith Whittington in a 2004 essay. As conservative jurists found themselves in the majority, he added, they needed to develop a theory that could guide majority opinions and not just dissents.

This new originalism, he continued, is less likely to emphasize a primary commitment to judicial restraint. Historical research has replaced the high-level theoretical arguments of people like Bork. The original public meaning of constitutional text is fixed, it asserts, but it can be applied to new facts and circumstances.

Critics argue this has made originalism as unpredictable and judge-empowering as other theories of constitutional interpretation.

Sitting here in the present day using books and articles from a long, long time ago to decide what a provision of the Constitution means [gives judges] a lot of discretion, says Kimberly West-Faulcon, a professor at Loyola Law School in Los Angeles.

That discretion was on full display in the Supreme Courts only, to date, originalist majority opinion: District of Columbia v. Heller in 2008.

Both the majority opinion and the main dissent in the 5-4 ruling made originalism-heavy arguments. In the end, the majority voted to reinterpret the Second Amendment to protect an individual right to have a handgun in the home.

Todays Supreme Court has an even stronger originalist bent. Justices Clarence Thomas, Neil Gorsuch and Amy Coney Barrett all have strong originalist backgrounds. Justices Samuel Alito and Brett Kavanaugh also seem originalist-inclined.

What this heralds for how constitutional rights will be interpreted moving forward is difficult to predict.

One near certainty is that the Second Amendment is going to be debated on originalist grounds. A gun rights case the justices heard in November saw a torrent of textual and historical arguments from both sides. Amicus briefs discussed 13th-century English law, the 1328 Statute of Northampton, and a 1770 state law in Georgia.

By the end of the oral argument, a majority all sounded willing to strike down a New York gun regulation. The justices also made clear that the original meaning of the Second Amendment and historical gun regulations would be central to their analysis. What they didnt make clear was how that text and history should be analyzed.

This is a wonderful case for showing both sides, said Justice Stephen Breyer. Im not sure how to deal with the history.

The question is how to use history, agreed Justice Elena Kagan. How far up do you look? With what sense of flexibility do you look? she added. Because we realize that the world has changed.

Originalists have sought to thread this needle with a continuation of Scalias argument. While the original public meaning of constitutional text is fixed, they say, the factual circumstances around it can change.

Thus, while women were considered covered by their husbands or fathers, with few rights of their own, when the Constitution was ratified and only a womans right to vote is now explicitly recognized by the 19th Amendment originalists read womens rights into the Constitution today because the words person and citizen now can be read to include women.

For some legal scholars, this nullifies most of the restraint originalism claims to own. Critics, for example, point out that abortion was legal under common law until about 1880. While the 14th Amendment was debated, the legality of abortion during the time of the founders was not discussed by any of the originalist justices during oral arguments during Dobbs v. Jackson, the case that is likely to shrink abortion rights if not completely overturn Roe.

The entire premise of new originalism, that the original meaning of the Constitution is fixed, is absurd, says Eric Segall, a professor at Georgia State University College of Law and author of Originalism as Faith.

Some specific provisions may be fixed, like having two U.S. senators from each state, or that the president must be at least 35, but those provisions dont tend to be litigated.

Critics point out that the hard questions concerning vague provisions are what the Supreme Court has to grapple with, such as clauses stating that people cant be deprived of life, liberty, or property without due process of law.

We dont know what due process means, says Professor Segall. Vague phrasings cant have fixed meanings.

This critique strikes at a core feature of modern originalism: the difference between the theoretical and the practical.

Scholars can do research to help cast light on what the actual meaning of the Constitution is, says Professor McConnell. Judges have the practical job of applying it to real cases and to deal with precedents over time, and deal with prudence in judgment.

Its not surprising that the answers that they give are sometimes a little different, he adds.

Professor Balkin has a harsher assessment. Almost all judges he says, are what he calls cafeteria originalists.

They invoke originalist rhetoric when it is convenient, and when it is not convenient they do not invoke it, he adds.

This is the most originalist Supreme Court in American history, and it is also the most conservative Supreme Court in nearly a century. That, as much as any originalist rhetoric, critics say, is going to determine how constitutional rights are interpreted and reinterpreted moving forward.

The country could be poised for a shift in law as dramatic as that conducted by the Warren and Burger courts, they say. Originalist scholars, meanwhile, believe that as the theory matures, the judicial discretion it may currently allow will be restricted.

Most constitutional issues would be settled by careful research into the original meaning of the constitutional text, says Professor Solum.

And in the long run, he adds, a consistently originalist Supreme Court would result in the perception that the court is a less political body, and it would be likely to restore trust in the court.

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Originalism moves from theory to high court. What that means for US. - The Christian Science Monitor

HOUSTON NOW Inc.announced Dec. 17 that it has entered into an amendment (the First Amendment) to the existing senior secured credit facility with a syndicate of lenders, withWells Fargo Bank, National Associationserving as the administrative agent (as amended, the Credit Agreement).

NOW Inc. which does primarily as DistributionNOW was. No. 13 on Industrial Distribution's 2021 Big 50 List.

The First Amendment amends certain terms, provisions and covenants of the Credit Agreement, including, among other things: (i) extends the maturity date under the Credit Agreement toDecember 14, 2026 (ii) provides for a five-year$500 millionglobal revolving credit facility, with potential to further increase the credit facility to$750 million; (iii) increases availability under the Credit Agreement by expanding the borrowing base definition to include certain pledged cash deposits of the Borrowers; and (iv) decreases by 0.250% the applicable rate for borrowings of base rate loans and Eurocurrency rate loans when the Fixed Charge Coverage Ratio (as defined in the Credit Agreement) is less than or equal to 1.50 to 1.00.

David Cherechinsky, President and Chief Executive Officer ofNOW Inc., stated, "I am pleased that we have completed the amended credit facility which extends our agreement throughDecember 2026and provides cost savings and improved terms. Working capital efficiencies converted our inventory and receivables into record cash levels. Under the updated credit facility, including the accordion feature, we maintain a considerable runway for growth with the potential to triple our reported third quarter credit facility availability of$248 million. We are appreciative of our bank groups support and continued commitment toDNOW. The amended credit facility along with our strong cash position and debt-free balance sheet provide significant strategic flexibility and capital for continued growth."

Additional information regarding the First Amendment can be found on a Form 8-K to be filed with theSecurities and Exchange Commission.

NOW Inc.is one of the largest distributors to energy and industrial markets on a worldwide basis, with a legacy of over 150 years.NOW Inc.operates primarily under the DistributionNOW and DNOW brands. Through its network of approximately 195 locations and 2,400 employees worldwide,NOW Inc.offers a comprehensive line of products and solutions for the upstream, midstream and downstream energy and industrial sectors. Our locations provide products and solutions to exploration and production companies, energy transportation companies, refineries, chemical companies, utilities, manufacturers and engineering and construction companies.

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NOW Inc.'s Credit Facility Extended Through 2026 - Industrial Distribution

Mooney's actions are described by union officials as a way to undermine the union's first amendment freedoms of speech and association.

ORANGE, Texas The state's largest law enforcement labor union is calling on Orange County officials to reverse the actions of the county's sheriff, which they say violated the constitutional rights of union members.

The Combined Law Enforcement Associations of Texas released a statement claiming that recent actions by Sheriff Jimmy Lane Mooney were, "punitive and oppressive."

Union officials feel that Mooneys actions go against the Orange County Sheriffs Employees Association and union elected leadership and show his intent to retaliate against the association for recent contract negations with county commissioners.

"CLEAT has stated that I retaliated against some of some people here at the sheriff's offices which I vehemently deny," Mooney said.

The union said Mooney's actions violate assurances made to OSCEA that there would be no retaliation or ill-treatment of union members.

"The ink had barely dried from OCSEA President Dustin Bock and County Judge Gothia signing the most recent collective bargaining agreement when Sheriff Mooney began his oppression and punitive acts against the union leadership," CLEAT Executive Director Charley Wilkison, said.

The union claims Mooney, "effectively disrupted this unions operation and ability to represent its members." Mooney created assignments at the Orange County jail for association officials that were meant to punish them by segregating them in lockdown environments, according to the release.

"I have spoken with Judge GOTHIA. He does not run this office. He made that clear, Mooney said. They're standing behind me as far as whatever assignments or reassignments that I made."

Two association leaders, who made the OSCEA bargaining team, disputed statements made by Mooney regarding additions to the union contract that he requested in open court. Union members were opposed to the sheriff's requests, according to the release.

Mooney reassigned the leaders to punish them for associating with and speaking on behalf of the union, according to the release.

Mooney's actions are described by union officials as a way to undermine the union's first amendment freedoms of speech and association. CLEAT members claim the sheriff's actions demonstrate anti-union behavior and have caused several union members to file grievances to protect their contracted privileges.

Mooney canceled some of the deputies' benefits and refused to return them until union members voted on a collective agreement that would not allow employees to appeal unpredictable job actions assigned by the sheriff, according to the release.

The union claims the Orange County sheriff also verbally threatened members of the union negotiations team and executive board of the union when they decided to continue negotiations with county commissioners regarding their contractual benefits. Mooney threatened to and did cancel other benefits in violation of the collective bargaining agreement, according to the release.

From a CLEAT press release:

AUSTIN The states largest law enforcement labor union, the Combined Law Enforcement Associations of Texas, or CLEAT, is calling upon Orange County Judge John Gothia and Orange County Commissioners to intervene and reverse punitive and oppressive actions by Sheriff Jimmy Lane Mooney against CLEAT affiliated local, Orange County Sheriffs Employees Association, and that local unions elected leadership. Recent actions by Sheriff Mooney clearly illustrate his intent to retaliate against OCSEA leadership and the union for their recent contract negotiations with the county commissioners.

CLEAT Executive Director Charley Wilkison stated, the ink had barely dried from OCSEA President Dustin Bock and County Judge Gothia signing the most recent collective bargaining agreement when Sheriff Mooney began his oppression and punitive acts against the union leadership. These recent actions by the sheriff clearly violate commissioner court public assurances to OCSEA that there would be no retaliation or ill-treatment of local union members. The commissioners publicly resolved support of the local unions right and obligation to negotiate on behalf of its members and assurances were echoed by each commissioner against retribution during open court negotiations with the local association leadership.

The sheriff has effectively disrupted this unions operation and ability to represent its members by banishing local union leaders to the county jail in assignments that were newly created by the sheriff with the intent to punish the association president and treasurer by segregating these individuals to a lockdown environment. The sheriff obviously intends to subvert the first amendment freedoms of speech and association by the union leadership. These two association leaders made up the formal OCSEA bargaining team along with CLEAT lead negotiator, Craig Deats, and clearly disputed the sheriffs statement, in open court, regarding union consensus of his requested additions to the union contract that members were opposed to.

Both union leaders are accomplished investigators and were reassigned to positions created by the sheriff as punishment for associating with and speaking out on behalf of the local union. The sheriffs actions further illustrate a pattern of anti-union behavior which has required several union members to file grievances to protect their privileges under the contract. In late August, the sheriff canceled the deputies take-home car benefit and stated they would not be returned until the union members voted on the collective agreement which empowered him by canceling appeal rights of employees for arbitrary job actions by the sheriff. Furthermore, when local union leadership committed to negotiate with county commissioners in an attempt to maintain their contractual benefits, the sheriff issued verbal threats to those on the union negotiations team and executive board of the union that he would and ultimately did cancel other benefits in violation of the collective bargaining agreement.

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Texas police union calls on Orange County officials to reverse 'oppressive actions' by Sheriff Jimmy Mooney - 12newsnow.com KBMT-KJAC

As for how Mr. Trump might go about declaring a national emergency, Mr. Waldron told the podcast that the gambit hinged on a report about foreign interference in the election that John Ratcliffe, the director of national intelligence at the time, was bound by congressional mandate to present by Dec. 18. If Mr. Ratcliffe pointed a finger at China, accusing Communist Party officials of having manipulated votes in the United States, Mr. Waldron said, Mr. Trump would be within his rights to declare an emergency and seize some voting machines to conduct a paper recount.

Similar advice was being given to the president by others.

In mid-December last year, for instance, Mr. Flynn appeared on Newsmax, the right-wing television channel, and pushed the president to impose martial law and use the military to rerun the election.

In a dramatic meeting in the Oval Office, Mr. Flynn, Ms. Powell and Mr. Byrne urged Mr. Trump to use an emergency declaration to demand a recount of votes in key states on live TV or have the National Guard redo those states elections, Mr. Byrne wrote in his book, The Deep Rig.

Mr. Waldron has claimed that he worked under Mr. Flynn at the Defense Intelligence Agency, but the Army declined to comment, saying it could discuss only releasable details of Mr. Waldrons military career. Mr. Flynn did not respond to messages seeking comment.

Another person pushing Mr. Trump to impose martial law was Stewart Rhodes, the leader of the Oath Keepers militia. At a pro-Trump Stop the Steal rally in Washington on Dec. 12, Mr. Rhodes and members of his group provided security for Mr. Flynn, who was speaking at the event. Helping the Oath Keepers, Mr. Rhodes said, was a shadowy group of former Special Forces operators called the First Amendment Praetorian. (Their leader, Robert Patrick Lewis, has also been subpoenaed by the House committee.)

During the rally in December, Mr. Rhodes gave a television interview in which he railed against China and urged Mr. Trump to fight against traitors at home. He should drop the hammer with the Insurrection Act and wage war on the insurrection thats going on in our country, Mr. Rhodes said.

In the end, Mr. Ratcliffe did not meet his Dec. 18 deadline to publish the report on foreign interference. Speaking on the podcast, Mr. Waldron blamed Mr. Ratcliffes failure on rogue elements in the intelligence community, still loyal to former President Barack Obama, who actively downplayed the role of China in the elections.

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Phil Waldron's Unlikely Role in Pushing Baseless Election Claims - The New York Times