Category Archives: First Amendment

Jenny Durkan vowedto be afierce and gentle leaderof Seattle after routing Cary Moon in the 2017 mayoral election. The former U.S. attorney swiftlyshowed her commitment to the city's future, signing a pledge tomake community college free for local high school students less than 24 hours after assuming her new gig.

But three years later, the Seattle-born politician opted to forgo another term in the city's top post.Amid the coronavirus pandemic, she said, shewanted to focus on fulfilling the duties of her job, not politicizing them.

By then Durkan knew all too well just how divisivethat job could be. In June of 2020, the mayor drew criticism from both sides of the political aisle forhow her police departmentresponded toBlack Lives Matter protests and the creation of CHOP. Even as she departs her office, multiple lawsuits against the city linger, including one tied to missing text messages from Durkan and others during that tumultuous summer.

Durkan says her family has received death threats in the year-plus since the protests began. Still, she hasn't lost her sense of humor. On a recent Friday morning, acopy ofThe Worst-Case Scenario Survival Handbooksat betweenProfiles in Courage andThe Firebrand and the First Ladyatopa coffee table inside her City Hall office.

With Bruce Harrell set to takeover this January, Durkanisin the process of moving out. A toy truck and other items to busy visitors' children willsoon have to be packed up, aswill the #SonicsForever poster outside her door.

Durkan recently took a break from her mayoral move-out to reflect on the last four years, offering her thoughts on the citys Covid response, defunding the police, and, yes, those missing texts. The interview has been edited and condensed for clarity.

One of our magazine'srecentgroup interviewsfocused on the difficulties of being Seattle mayor. A lot of the commentary was, yeah, it's kind of an impossible job. So let's be real. Are you relieved to be leaving?

I wouldn't say relieved. It's interesting because when you get to the end, and I talked toI think it was governor [Gary] Lockeand I was talking to him about some of the things he did. And he said, I'm proud of the things we've done, but what keeps me up are the things we didn't quite get done. And I think you always have that feeling at the end. Covid and the pandemic so disrupted everything else we were doing and eclipsed all our other work. Obviously, it defined my being mayor.

We were the first. Those early days were, I think, fair to say, terrifying. We had no road map, not really any federal assistance, and just really had to find our own path forward. But I think that when history is written, they're gonna say, We're the city that got it right. And each step of the way, we were doing innovative projects, both how do you deliver city services to how do you get testing, then how do you stand up a testing system, to then vaccinations. And I'm very proud that we have the lowest rate of disease, hospitalizations, and mortality rates of any city in America, which is remarkable.

The other period that will define your term is June of 2020. Even as you're leaving, your term is still being litigated. There are multiple lawsuits against the city for how the CHOP was handled and the protests and the shooting of Horace Lorenzo Anderson. How would you respond to people who say the city handled that period of time poorly?

So I think there's two parts of it. I think the most important thing coming out of that period of time is, did you take steps to address the reasons people were protesting in the first place? What systemic changes did you make? Because that's really the mark of what are you doing and what comes out of that period. And I think that we've done remarkable things together in the city to really address what came out of those protests and why people were protesting. As mayor, I committed $100 million to be invested in community-based organizations in the BIPOC community, to really get at the reasons why people were protesting.

Nobody liked what happened there. The police didn't like it, the public didn't like it, the protesters didn't like it, and there has to be a better path forward.

We just can't deny the impacts of systemic racism on every institution. Until we have healthy communities, we won't have safe communities. And to have healthy communities, we have to be able to have investment in things like access to pre-K, health care, affordable housing, wealth-building, generational wealth, getting at those root causes. I think our response to thatif you look at the programs now we've put in place, the task force I put together came with recommendations, we've now committed $30 million to just those. We also committed a significant sum just to infuse into community-based organizations that can have that generational impact. We turned over properties to the community that were very significant to those communities, put in place anti-displacement orders, worked on gentrification.

So I think the most important thing coming out of summer 2020 is: Did we listen, and are we making the changes we needed to make? And I think that's really the most critical thing that people need to focus on. Because that's what people will remember in three years, five years, and 20 years. Do the kids today have different opportunities? If you look at our preschool program, our Seattle Promise program, those things are really crafted to address those systemic inequities, and they're remarkably successful.

But I am curious, during that period of time, there were lawsuits and threats coming from all angles. There was Seattle is an anarchist jurisdiction, and then there was, the police are being too heavy-handed or what have you. How did you balance those competing ideas during that time? What was your state of mind?

I think it was an unprecedented period of time and challenge for our city, for me as mayor, and for businesses and residents. You have to remember, we were a number of months into the pandemic. So people were very depleted to begin with. Businesses and residents had significant challenges. In June of 2020, most of the businesses on Capitol Hill were still closed because of the pandemic. So you had already a really tired and depleted population. People were just exhausted. And then with the civil rights reckoning coming on top of that, to navigate both what the president was doing, which was escalating things at every step, and his favorite media network escalating things to the point where they even had false photos depicting Seattle for what it wasn't, to the real necessity to mediate between this ongoing conflict between protesters and police. Because Seattle police had never really experienced that kind of protest against policing. They'd seen protests of other types, but even WTO, they were protesting an organization.

It was just an incredibly dynamic, sometimes volatile combination. And what I had to focus on as mayor was, number one, we had to balance a number of interests. One: First Amendment right to protest is ingrained in who we are as a society, and you have to be able to allow and protect people's expression of First Amendment rights. At the same time, you have to provide for the safety of protesters and businesses and residents to make sure that you're looking at how to keep them safe, and not just from what might happen with the protest activity, but because we're in the middle of a pandemic.

[Later, Durkan added the following.] Our approaches to crowd management didn't work. And they didn't work anywhere. I think 100 cities ended up deploying tear gas. And no one has the answer to: What do you do when you have significant numbers of lawful protesters, who have every right to be exercising their First Amendment, and some people within that protest who are doing criminal conduct? How can you safely extricate them or respond to them and not infringe upon the rights of the people that are protesting lawfully? And that's going to be the hardest thing for people to do.

They shifted their tactics. And we know they haven't used many of those less-than-lethal tools for a very extended period of time now. But nobody liked what happened there. The police didn't like it, the public didn't like it, the protesters didn't like it, and there has to be a better path forward.

During this period, there are text messages missing from you, [former police chief Carmen] Best, and some other folks. What happened to your text messages?

They're looking atthere's the litigation, there's forensic reports [to look] at that's not completed. Really what gets lost in this is, I always understood and believed that the city was collecting and archiving all of our electronic information, calendars, emails, text messages, and the like. And that through the process nowbecause if you send a text to me, there's a copy on my phone, a copy on your phone. So we've been in the process of collecting all the text messages that we would have sent to other people, and have provided hundreds and hundreds of those. So theyre being re-created.

In addition to that, [were] trying to solve for the solution to make sure that that kind of data loss can't happen again, putting in both technological solutions and system solutions. We're trying to holistically, first, get the information so people can have access to it. Second, you know, put things in place so it doesn't happen again. I think that that's really going to be the key. And I think that, at the end of the day, by the time all the litigation is done, if not all, the vast majority of those texts will be available for people to review.

But what exactly happened?

It's in litigation, the forensic report is looking at it fully. And that's the status right now.

[Durkan later added a bit more.] I've made really clear before that not only did I not purposely delete any messages, or these messages, but I truly believe that they were being held. And as soon as I found out, I said, Okay, let's see what we can do to go find another place because I believe the public has a right to know. And I've operated on that ever since I've been mayor, that everything I do in a sense is the public's.

Can you at least understand how the public might feel that this is suspicious, that your texts and Chief Bests texts are missing during this period of time, when it was such a contentious and controversial period?

I do see that, but I think it's incumbent upon the press and others that a number of things are true. Number one, during this time, I think Chief Best and I appeared before the press, dozens of times. We gave multiple press conferences, sometimes in a day. All of what was happening was happening in real time. We took questions about what we were doing and why we were doing itLast summer, for example, we released a statement on what happened in the East Precinct. And there's now been a thorough investigation both by KUOW and the Office of Police Accountability that confirmed that what we said is exactly what happened, and [it] had more detail about the names of the individuals involved.

I don't think there's information that's being kept from the public.

I think it put to rest the questions that people had, that they somehow thought either that I could order people out of the precinct or we were going to abandon the precinct. It's really clear that having that information shows that what we said is true: Because of the confluence of events, and the determination to really want to deescalate those conflicts every night between the police and the protesters, the Seattle Police Department kept taking different strategies and tactics. They moved the line back. They used different types of barriers. None of those things worked. And we saw on the night of the seventh, again, Chief Best made the decision to deploy tear gas. It was clear things were continuing to escalate, so the decision was made to remove those barriers.

Once that happened, the policewanted to make sure that they could protect the precinct should it be targeted by fire or overrun by protesters or anything like that. So they removed anythingconfidential information, weaponsfrom there. They were going to construct a fence around it at the perimeter, put the foam on the building so it couldn't catch fire. But when they got there, they determined they couldn't put the fence around the perimeter, so they had to attach it to the building. They couldnt foam down the building. And the police commander on site said, I don't think it's safe for people to be staying in this precinct right now. We're going to take them out, stage nearby. But the plan was always to come back.

So, again, I think that information is available. I think that in every area where people might have questions about what happened, there is a lot of information there about what happened. I don't think there's information that's being kept from the public.

Did you feel that you could run again, after everything that had happened?

Yes, I think I could have run, and I think I would have won. And I think these election results demonstrate that. The main conflicts that I had with city council related primarily to policing and their stated position they were going to defund the police by 50 percent. And I knew that wasn't feasible. You couldn't protect public safety and do that. You have to stand up alternatives, and I've been involved in standing up alternatives literally my whole career. I helped form the first drug court we had in the region, the first federal drug court, in addition to that the King County mental health court. We started Health One before the pandemicto have a different alternative to policing, to be able to roll to some of these very important crisis calls.

So, yes, we need alternatives. But we also need police. If you look at the totality of work that we do, the budget that just passed was about $7.2 billion. The areas that the city council and I disagreed on was probably in the neighborhood of 20 to 40 million. So there were philosophical differences on policing. But again, I think these elections show that the majority of the city agrees with the positions I had, which is: Yes, you need alternatives, but you also need a sufficient number of police.

When did you decide not to run for reelection, and what went into that decision?

I announced it on December 7 (of 2020), and I was having some conversations and reflecting on what we needed to do in the coming year. I believed at the time, and I think it was the right decision, that I couldnt both do the job and run for the job. Because, remember, vaccines hadnt happened yet, right? We knew we were going to have to stand up a monumental vaccination program. We knew we were going to have to do some things on public safety and homelessness. And we had to try to take those issues out of the political lens so that people could work and collaborate together. And the nature of politics is, is that if you are running for an office and people are running against you, everything you do is viewed through that political prism.

I really believe for Seattle, therewas so much work that needed to be done in addressing the pandemic, trying to get an economic recovery, deal with our public safety issues, deal with the difficult issues around homelessness and standing up the new regional authority, which remember, again, we didn't even have a head of that yet, that it was really important to be able to do those things and do it in the best way possible for the city and not have it politicized.

Other officials have run during this period of timehad their jobs and ran during this Covid period. You just felt you couldn't handle both?

No, don't ever write that. I could handle both. Both would not be right for the city of Seattle.

As you're reflecting now on these last four years, what are the accomplishments that you feel like, I leave here knowing I did this.

There's a number. Number one, Covid. That eclipsed everything and was job number one for the mayor of the city of Seattle, was getting us through Covid-19, both the impacts it had economically on communities, and the services we delivered, and being able to stand up the systems that we did, and I think that we led the nation in it. And we did it because of the choices that I and others made. And also setting a new framework for how you can collaborate not just across governments, but together with the health care system and private businesses. It took an unprecedented level of collaboration between inside government, outside government, and different types of government. And that required, you know, a daily type of leadership.

Give you an example. We have a really good program serving our seniors. It developed in the 70s and 80s. But a good portion of that was delivered through senior centers. Well, suddenly, all your senior centers close. Those seniors now are not just deprived of the engagement with other seniors, and the classes we were operating; for many of them, it was the only meal they got.

So closing down senior centers had this cascading effect on the health of those seniors. We had to stand up, almost overnight, a hot meal delivery service. Well that's not something the city usually does, you know, so we get Lumen Field to give us their kitchens. We get FareStart because they had to close their restaurants to prepare the food. We get someone else to do the delivery system.

I think I would have won.

We had to look at that level, and then we had to look at the big level of: If you have a population of 780,000 people, and you want to get to a 70 percent vaccination rate as quickly as you can to provide some buffer against the pandemic so you think you can open up, that's a huge undertaking at a scale we've never done before. And the city had no access to vaccines themselves. We didn't get it direct distribution, unlike cities like San Francisco and Los Angeles. I think the pandemic, both how we did it and the results, are an incredible legacy for this city.

When we come out of this, our downtown and some of our other businesses have been just hugely set back. We're not only going to have to rebuild here; we're going to be competing against every major city in America on how we redefine our downtown. So while we were in Covid, [it was] really important to be thinking about: What are those big civic infrastructure investment type projects that you can continue moving forward, that will give you an advantage as a city? Climate Pledge Arena, really critical for us to be able to get that done and it took a lot of work to find ways thatthat workforce could work safely and continue to work during Covid. Waterfront Park, again, that's going to redefine the city.

I think the Seattle Promise program, for the four years, will be one of the most important things that we did, increasing the size of pre-K We had [about] 1,000 students enrolled [in Seattle Promise] last year... It's not just tuition. It's the counseling when they're in high school. And when they get there to make sure that they really can make the most of it. It's working with our employer base to say, what do you need from employees so they can get good family-wage jobs coming out of it?.... I think it will be a program that really does start to change the face of opportunity for the city.

One more legacy thing that I'll say is, when I came in, and we still have [a need], but affordable housing was just a critical thing. My administration has announced affordable housing of $2.5 billion, thousands of new units, including 1,300 units for permanent supportive housing for people experiencing homelessness. It will be the largest generation of affordable housing, and it's in every part of the city.

What did you learn about the city that you didn't know before taking this job?

That the city has changed a lot. We grew so rapidly in such a short period of time. Amazon changed the face of the city, bringing in so many new younger employees, many of them very urban. We are now a city of mostly renters, whereas before we were largely a city of homeowners, and that changes the dynamic. And it makes city government have to address the realities for that.

Part of it is, they're renting because we have a much more fluid population, too. People will come here, they'll live for three to five years, or take a job for two years and then move to San Francisco or Austin or wherever. We saw so many of the same people move when the pandemic hitthey left to work from a remote location. Before Seattle hadin the 70s, we lost such a significant part of our populationbut Seattle before had been relatively stable in terms of population shifts.

I believe the mayor traditionally leaves a note for the next mayor, in the desk there. What might you say to Bruce Harrell?

Traditionally, we never say either [laughs].

Speaking broadly, then, what advice do you have?

I've talked to Bruce. I think there are some incredible challenges that remain. We're not done with a pandemic. And he's going to have to continue to figure that out, because it affects every part of his job.

Theres still work to be done around policing. He's going have to hire a new police chief. That will bring right to the surface immediately some of those schisms we have in our city, about not just what our department has done before, but what do we want policing to look like in the future? That's going to be right out of the gate. And on homelessness, he's going to have to have a really strong relationship with the regional authority, because they're going to have hands on so many of the levers that impact his streets in the city.

I will say my number one thing is, even in a pandemic, get out of City Hall. Get out of City Hall, into communities, into the neighborhoods, talk to as many people as you can. I did that from day one.

Whats next for you?

I don't know yet. I'm going to take a break, spend some time with my family, and really try to decompress a little bit. This has been extraordinarily challenging for them and hard on them. The amount of vitriol during this last period of time has been hard, [with] a significant number of legitimate, true death threats and people who want to kill them and me, as well as regular vandalism to our house and harassment. It's been very, very hard on them. Part of it is just to say, Okay, you get to drive now. What do y'all want to do?

Go here to see the original:
Seattle Mayor Jenny Durkan on Those Missing Texts, CHOP, and Covid - seattlemet.com

On Dec. 15, 1791, the Second Congress of the United States officially adopted the first 10 amendments to the Constitution the Bill of Rights which protect our core freedoms. Beginning in 1789 when they were introduced by U.S. Rep. James Madison, the amendments were vigorously debated and eventually ratified by 11 of the 15 states.

The Bill of Rights is a tool to rein in government power. As its preamble states, its purpose is to prevent misconstruction or abuse of (the governments) powers and to best ensure the beneficent ends of its institution. Today, we often think of the Bill of Rights as a list of things the government allows us to do. In fact, it is a list of things the government cannot do. And paramount among the many things the government has no business interfering with are the five freedoms protected by the First Amendment.

Those freedoms religion, speech, press, assembly and petition were bundled together very purposefully. Together, they represent the means by which people have ideas, share ideas and transform those ideas into reality. The freedom of (and from) what is referred to in the text of the amendment as religion was understood by 18th-century statesmen to encompass the freedom of unimpeded belief or thought. Madison called that liberty of conscience in a prior draft. Free thoughts, expressed with free speech, disseminated by a free press, debated and developed by free assemblies of other free thinkers, may eventually be pressured into legislative action through the process of petition.

That process of changing an idea into an action is what enables our society to evolve.

The five freedoms of the First Amendment also empower our individualism and allow the fringes of society to flourish, for good or ill. No ones idea is too far-fetched to be shared, no speech too horrible to utter (unless it presents an imminent threat to the physical safety of others). No media source can be shut down for publishing controversial opinions or scandalous stories, or for speaking truth to power, or for holding the government accountable. No lawful peaceful gatherings can be forcibly disbanded, whether by vigilantes or the authorities; and no opinion can be declared an unlawful cause to petition the government to pay attention to, or to march in support of no matter how distasteful.

The First Amendment is complicated and, at times, frustrating in its inclusivity. The spectrum of its freedoms empowers our individualism on the one hand and enables our collective voice on the other. It facilitates our ability to change the structure of our government, and to decide who gets a voice in that government (and how much of one), but it also can be used to prevent change from happening, to bulwark position and privilege and to support the status quo. It is the power and the inertia on both sides of the metronome.

Americans, no matter how polarized we may be, share a common purpose or goal, whether we are conscious of it or not, from the Preamble of the Constitution: to form a more perfect Union.

The five freedoms in the First Amendment are what empower us, we the people, to create that more perfect union.

On the 230th anniversary of the ratification of the Bill of Rights and the official adoption of the First Amendment, the question is, will we ever agree on what a more perfect union might look like?

The First Amendment protects our right to live our freedoms even as we debate the question.

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Commentary: First Amendment protects our right to live our freedoms - Press Herald

SAN DIEGO (KUSI) The San Diego Unified School District Board of Education Tuesday will consider adopting a set of rules for debates and public comment periods at its board meetings in response to a rise in hate speech and unruly behavior at public meetings both locally and nationally.

The board will consider the Code of Civil Discourse, authored by the National Conflict Resolution Center, at its Tuesday meeting.

The district says most often, the unruly or vitriolic speech is made in response to hot- button topics such as vaccine mandates and the mistaken belief schools are teaching critical race theory, officials said.

Its so important for every public agency to model civility and respect at this point in our nations history, but school boards need to always remember that the way we conduct ourselves sets a model for our students, San Diego Unified School Board President Richard Barrera said in a statement. We are grateful that National Conflict Resolution Center, our longtime partner, is taking a leadership role in advocating that public meetings throughout San Diego county are conducted in a way that allows honest, open, and respectful dialogue even when and especially when we disagree with each other.

According to a district statement, hate speech and disorderly conduct at public meetings have become a major problem for local government bodies nationwide and it has reduced public officials ability to do their jobs and serve their communities effectively.

The Code of Civil Discourse, which was first established by the National Conflict Resolution Center in 2015, is intended to serve as a guide for facilitating civil, respectful discussions of opposing views during public meetings.

Our democracy depends on our ability as Americans to have civil discussions that constructively air different points of view, according to Steven Dinkin, president of the National Conflict Resolution Center, which is based in San Diego. Without this, our elected leaders cannot get things done, and our communities suffer.

However, when ground rules are established and adhered to, it is possible to express views on polarizing topics in a civil, respectful manner and work toward solutions that benefit all involved, Dinkin said. The Code of Civil Discourse is intended to encourage productive conversations about policy issues, no matter how strongly-held the views are on either side, while still respecting all participants First Amendment rights.

Last month, in response to a contentious meeting in which some members of the public used racist and threatening language, the county Board of Supervisors approved the same code.

The change for that body added a series of policies, including:

Reading a statement on the countys policy regarding discrimination and harassment into the record during the meeting;

Prohibiting disruptive conduct, including but not limited to loud or threatening language, whistling, clapping, stamping of feet, speaking over or interrupting the recognized speaker;

Creating parameters for group presentations allowing them only to be given for land use or adjudicatory matters as well as a maximum time period of four minutes for individual members of each group within the 10-minute maximum;

Limiting public comment to one minute per person if there are more than 10 individuals wishing to comment, under the Brown Act;

Adopting a consent calendar for routine or administrative items for which debate is not anticipated;

Asking members of the public to bring their own technology to provide presentations; and

Codifying continued allowance of remote participation by the public to participate in board meetings.

Earlier this year, NCRC partnered with UC San Diego to form the Applied Research Center for Civility, the nations first-ever research center dedicated to conflict resolution, civility and bridging political divides, according to a statement from the center.

Link:
SDUSD to consider a set of rules for public comment at it's board meetings 'while still respecting all participants' First Amendment rights' - - KUSI

Michael Cohen, the former attorney for Donald Trump, has issued a defiant message about his legal fight after filing a lawsuit that claimed his return to federal prison was punishment for writing a critical book about the ex-president.

In December 2018, Cohen was given a three-year sentence for crimes including tax evasion, campaign finance violations and lying to Congress.

But in May 2020, Cohen was allowed to serve his sentence at home due to the COVID pandemic, during which he made public statements about the publication of his book, Disloyal: The True Story of Michael Cohen, Former Personal Attorney to President Donald J. Trump.

Cohen was ordered back to prison, with officials saying he had not accepted certain terms of his release.

U.S. District Judge Alvin K. Hellerstein ordered Cohen to return to home confinement after saying that his transfer back into custody was a "retaliatory" measure, thwarting his "First Amendment rights to publish a book critical of the president and to discuss the book on social media."

Cohen's lawsuit was filed in a Manhattan federal court on Thursday and names Trump, former Attorney General William Barr and federal prison officials.

It said that upon his return to jail, he was held in solitary confinement for 16 days in a small cell in Otisville, New York. There he suffered shortness of breath, severe headaches and anxiety.

According to the suit, Cohen was "retaliated against" for exercising his First Amendment rights and says he seeks "redress for the extreme physical and emotional harm he suffered as a result of the conduct of all defendants and for the pain and suffering he continues to experience."

On Thursday, Cohen shared a Bloomberg article of news of the lawsuit and added the message: "I will never stop until all of these animals who seek to destroy our democracy are held accountable for their unconstitutional and immoral acts!"

Jeffrey K. Levine, an attorney for Cohen, told The Associated Press, "without accountability, we have only chaos."

The suit says Cohen was the victim of a long line of "retaliatory measures" taken by Trump and his associates "in the weaponization of his administration against his enemies."

It also referred to attempts to stop books critical of Trump written by former security adviser John Bolton and the ex-president's niece, Mary Trump.

Cohen spent over 13 months in prison and another year and a half in home confinement. He had faced campaign finance charges connected with helping arrange payments during the 2016 presidential race to silence claims by adult film star Stormy Daniels and model Karen McDougal about affairs with Trump that the ex-president has denied.

Cohen has made public calls for Trump to be prosecuted and has given information to New York prosecutors looking into whether the ex-president misled banks or tax authorities about the value of his assets to get loans or tax breaks.

Newsweek has contacted Trump and the U.S. Bureau of Prisons for comment.

Read more:
Michael Cohen Says He 'Will Never Stop' After Suing Donald Trump - Newsweek

This is part of a series by the USA TODAY Opinion team examining the issue of qualified immunity.

Howard University Law Prof. Tiffany Wright on qualified immunity

The legal doctrine of qualified immunity is an anomaly within the law because ignorance isn't typically a defense for everyday people.

Jack Gruber, USA TODAY

It has been a while since we last updated you on the destructive Supreme Court policy called "qualified immunity." We're still on top of it.

It's a key issue in the national conversation on police reform. It's the topic of an ongoing series at USA TODAY Opinion, an issue in political campaigns, fodder for state lawmakers and an item on numerous court dockets.

Here's a look atthe latest headlines.

ByAnquan Boldin

"Nouman Raja was ultimately convicted of manslaughter andsentenced to 25 years in prisonfor killing my cousin. He was the first officer in 30 years to be convicted in Florida for an on-duty shooting," Boldin writes.

ByTyson Langhofer and John Bursch

"After almost two years of litigation, the district court held that the officials were entitled toqualified immunity and dismissed the case.On appeal, the U.S. Court of Appeals for the Eighth Circuitruled that the officials had violated Hoggards constitutional rights, but it also held that the officials were entitled to qualified immunity and could not be held responsible for their unconstitutional actions.In other words, public university officials stopped a student from peacefully exercising her First Amendment rights, but they got off scot-free because of qualified immunity," Langhofer and Bursch write.

ByCarli Pierson

"Civil rights attorneys have been relying onthe same Reconstruction-era lawto try toholda host of government officialscivillyaccountable forconstitutional rights violations, for instance, Fourthand Eight Amendment violations by government employees. But since the 1980s, plaintiffshave faced considerable obstaclesbased on the court-created doctrine of qualified immunity, which doesn't appear in the Constitution or in the KKK Act,"Pierson writes.

By The Editorial Board

"Hamdi Mohamud was just 16 years old when she was wrongfullyarrested. She has been tryingsince 2017to hold the police officer who lied accountable for what she went through. But when Mohamud, a Somali refugee whose life was torn apart by the experience, filed a lawsuit against Weyker, who had accused her of witness tampering, a federal appeals court let Weyker off the hook.The 8th Circuit Court of Appeals granted Weyker what amounts to absolute immunity, ruling that as an officerdetailed to a federal task force at the time of Mohamud's arrest, sheis entitled to broad protectionandcannot be sued," USA TODAY writes.

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Americans' conversation about police reform isn't going away. Here's an updated look. - USA TODAY

WASHINGTON (AP) A judge Thursday rejected a motion by Fox News to dismiss a $1.6 billion defamation lawsuit brought against the cable news giant by Dominion Voting Systems over claims about the 2020 presidential election.

In the 52-page ruling Delaware Superior Court Judge Eric Davis said that the voting-machine company had shown that [a]t this stage, it is reasonably conceivable that Dominion has a claim for defamation per se.

Denver-based Dominion filed a lawsuit earlier this year against the media organization alleging that some Fox News employees elevated false charges that Dominion had changed votes in the 2020 election through algorithms in its voting machines that had been created in Venezuela to rig elections for the late dictator Hugo Chavez. On-air personalities brought on Trump allies who spread the claims, and then amplified those claims on Fox News social-media platforms.

There was no evidence of widespread fraud in the 2020 election, a fact that a range of election officials across the country and even Trumps attorney general, William Barr confirmed. An Associated Press review of every potential case of voter fraud in the six battleground states disputed by former President Donald Trump has found fewer than 475 a number that would have made no difference in the 2020 presidential election.

Key Words (March 2021): Trump defender Sidney Powell justifies her election-theft claims by conceding reasonable people dont believe them

Plus (March 2021): Fox News sued for $1.6 billion by Dominion Voting Systems over election claims

Also see (August 2021): Dominion Voting Systems sues Trump allies over election-fraud claims

In denying the motion to dismiss the lawsuit Davis said that Dominions complaint supports the reasonable inference that Fox either (i) knew its statements about Dominions role in election fraud were false or (ii) had a high degree of awareness that the statements were false.

Davis said that Fox possessed countervailing evidence of election fraud from the Department of Justice, election experts, and Dominion at the time it had been making its statements. The fact that, despite this evidence, Fox continued to publish its allegations against Dominion, suggests Fox knew the allegations were probably false.

The judge also wrote that despite emails from Dominion attempting to factually address Foxs fraud allegations, Fox and its news personnel continued to report Dominions purported connection to the election fraud claims without also reporting on Dominions emails.

Given that Fox apparently refused to report contrary evidence the Complaints allegations support the reasonable inference that Fox intended to keep Dominions side of the story out of the narrative.

Fox News Media said in a statement: As we have maintained, Fox News, along with every single news organization across the country, vigorously covered the breaking news surrounding the unprecedented 2020 election, providing full context of every story with in-depth reporting and clear-cut analysis. We remain committed to defending against this baseless lawsuit and its all-out assault on the First Amendment.

From the archives (December 2020): Fox News, Newsmax air statements debunking voter-fraud claims pushed on air

Fox News had sought to have the lawsuit dismissed arguing that its coverage is protected by the First Amendment and that a free press must be able to report both sides of a story involving claims that strike at the core of democracy.

Fox News parent Fox Corp. FOX, -0.29% FOXA, -0.14% and News Corp NWS, -0.51% NWSA, -0.37%, which owns MarketWatch publisher Dow Jones, share common corporate control.

Class A shares of Fox Corp. are up nearly 27% to date in 2021 and have gained more than 31% over the past 52 weeks.

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Fox News motion for dismissal of Dominion Voting Systems defamation suit rejected in Delaware - MarketWatch

To say that America is divided on the abortion question is to say that Americans are divided in their beliefs. These beliefs are held with great passion and they are asserted as certainties. But the certainties oppose one another, and it is the diversity of sincerely held beliefs that needs protection from the Court.

Three points merit attention.

First: At stake on the question of non-therapeutic abortion are beliefs about fetal humanity. While species membership is in fact established at the moment of conception, fetal humanity is a philosophical and moral question, not a question science is competent to decide. That a certain point in biological development determines fetal humanity will always be a matter of belief, not science, and such beliefs will be arbitrary beliefs at that.

Second, people of goodwill disagree on questions related to fetal humanity, so such beliefs, as is often the case, will reflect a diversity of viewpoints.On this issue the diversity pertains to the point when the moral community decides to confer on a developing form of life a right to life.

Third. The beliefs about fetal humanity are either explicitly religious or otherwise grounded in non-scientific beliefs akin to religious beliefs. As such they deserve protection under the First Amendment.

RELATED:I'm a philosophy professor. The argument for making abortion illegal is illogical

In the current challenge to abortion rights, the original Roe decision is very much front and center. The Roe decision presents in a short space a diversity of philosophical and religious opinions on the question of fetal humanity, including stoic beliefs and a diversity of views on the possibility of abortion within Judaism and Christianity. Rarely mentioned in discussions about Roe is the strain of humility that runs through Justice Blackmun's review of these religious and philosophical viewpoints. For that one must turn to this comment: "We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer."

At this point the Court turned away from trying to decide the philosophical and even theological issues associated with fetal humanity and focused attention on the pregnant woman and the need to protect her health, rights and interests. Appealing to privacy, Roe concluded by offering those protections to the pregnant woman until the third trimester, when relevant interests expanded to include the state and the developing form of human life.

Constitutional conservatives lambasted Roe for its appeal to privacy when the Constitution takes no explicit note of it. There are more explicit constitutional grounds for endorsing abortion rights, however, and they are to be found in the two religious clauses of the First Amendment: the non-establishment of religion and the free exercise of religion.

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The Roman Catholic magisterium is on record opposing all abortions and hold to the view that a fertilized egg is sacrosanct and cannot be destroyed. Not all Catholics hold to this view: consider the group Catholics for Choice. Orthodox Jews would oppose abortion, but Reconstructionist and Reform Jews generally support abortion rights. Protestant Christians can be found both affirming and denying choice.

RELATED:There is nothing godly about outlawing abortion and Texas' law is particularly un-Christian

What this diversity indicates is that religious people hold beliefs about fetal humanity that both support and oppose abortion rights. Those beliefs are integral to essential religious affirmations. If the Supreme Court were to hand down a decision that sanctioned in law fetal humanity at some point prior to viability, the Court would be taking governmental action to establish a belief that contradicts those who in the free exercise of their religion deny that belief. The Court in effect would be establishing a religious belief in violation of the establishment clause while at the same time preventing the free exercise of religion.

The religious protections housed in the First Amendment provide a strong and explicit constitutional foundation for abortion rights (and even for privacy claims since citizens have a right to keep religious beliefs private). The strongly held beliefs avowed with certainty on both sides of the abortion debate are not scientific facts but philosophical, theological and moral viewpoints that must compete in the marketplace of ideas. Were the religious protections of the First Amendment to ground abortion rights societal peace might be forthcoming on this most divisive of issues.

More stories about the fight to preserve abortion rights:

Read more here:
Abortion rights should be protected under the First Amendment - Salon

From Hines v. Quillivan, decided Thursday by Judge Fernando Rodriguez, Jr. (S.D. Tex.):

Plaintiff Ronald S. Hines seek[s] declaratory and injunctive relief to permit him to give medical advice to animal owners without having physically examined the animal, as Texas law requires (the "Physical Examination Requirement").

As the Fifth Circuit explained [in an earlier decision in this case], the First Amendment issue before the Court on remand is a narrow one: "[W]hether the [Physical Examination Requirement] regulate[s] only speech, restrict[s] speech only incidentally to their regulation of non-expressive professional conduct, or regulate[s] only non-expressive conduct." Hines advances an as-applied challenge to the Texas statute. As a result, the Court analyzes the application of the Physical Examination Requirement in relation to the facts of this particular case, and not whether the law would be constitutional regarding every possible practice by all Texas veterinarians.

[Humanitarian Law Project v. Holder (2010)] proves particularly relevant to the analysis. In that case, several individuals and humanitarian organizations brought an as-applied challenge to a federal statute that prohibited providing "material support" to designated terrorist organizations. The Supreme Court stated that "[e]ven if the material-support statute generally functions as a regulation of conduct, as applied to plaintiffs the conduct triggering coverage under the statute consists of communicating a message." Additionally, the Supreme Court reasoned that the law was a content-based regulation of speech because the law barred the plaintiffs from providing legal advice and training to organizations if their speech "impart[ed] a 'specific skill' or communicat[ed] advice derived from 'specialized knowledge,'" but not if their speech communicated unspecialized information. As the statute's restrictive application turned on the content of the plaintiffs' speech, the Supreme Court rejected the Government's argument and concluded that the law represented a content-based regulation of speech subject to strict scrutiny.

The application of the Supreme Court's reasoning in HLP to the present case leads to the same result. While the Texas statute may generally regulate the conduct of veterinarians, as applied to Hines, it regulates his alleged speech.

First, it is undisputed that Hines did not physically examine any animal. Instead, he alleges that all of his interactions with pet owners took the form of verbal and written communications. He provides various examples of the nature of those interactions. He consoled distressed pet owners, recommended that pet owners seek immediate veterinary care because an animal's symptoms indicated a serious medical condition, clarified information that other veterinarians had provided to pet owners, helped pet owners "decide how to proceed when local veterinarians had provided conflicting diagnoses," and generally pointed them to relevant information on the internet.

[Hines' Complaint alleges that] Hines never prescribed medication or rendered any diagnosis. At times, if he discovered an error in a prescription that a pet owner received, he would provide guidance to the pet owner so that she could visit her local veterinarian to ask that the prescription be corrected. These alleged actions by Hines constitute speech, and not conduct. And based on these communications, the Defendants found that Hines violated the Texas statute and initiated disciplinary proceedings against him. In other words, as in HLP, "the conduct triggering coverage under the statute consist[ed] of communicating a message."

The impact of the disciplinary proceedings upon Hines's actions further demonstrates that the Defendants applied the Texas statute to regulate his speech. He alleges that the Physical Examination Requirement, as applied to him, has wholly restricted him from interacting with pet owners, even when his communications do not consist of diagnosing, treating, or prescribing medication to animals. He cannot call or e-mail an animal owner, even if only to console pet owners or disseminate general information, unless he first physically examines the animal. While he alleges that he "always requested the complete medical records from the owner's local veterinarian," even if the review of medical records may be categorized as conduct, that activity appears to be a small fraction of the activity for which the Defendants initiated disciplinary proceedings against Hines. In short, the overwhelming majority of what Hines sought to do, but which the Defendants prohibited him from doing unless he satisfied the Physical Examination Requirement, constituted speech and in no manner could be characterized as conduct.

{If, through discovery, the Defendants reveal that Hines primarily engaged in prescribing medication or reaching a diagnosis, then the Defendants may possess a more powerful argument that they can advance at a later stage in these proceedings.}

In the same manner, the Defendants' application of the statute is content-based. In HLP, the challenged law, as applied to the plaintiffs, permitted them to communicate unspecialized information, but not legal advice derived from specialized knowledge.

In essence, the application of the statute depended on the content of the communications. Likewise, to determine whether Hines is engaging in veterinary practices so as to trigger the Physical Examination Requirement, it is necessary to know the content of his communications. He may presumably communicate general information about animals, but not information that falls within Section 801.002(5) of the Texas Veterinary Licensing Act. This distinction squarely meets the definition of a content-based regulation, as defined in HLP.

Given that the Defendants' application of the challenged Texas statute to Hines represents a content-based regulation of his speech, it is subject to strict scrutiny. The Defendants in their objections do not challenge the analysis in the Report and Recommendation of whether the Defendants, at this stage of the proceedings, satisfy this level of review. [The Report concluded that "the Court should deny the motion to dismiss and permit the case to move forward to discovery, which would allow the State Board to bring forth any evidence it has to meet its burden" of satisfying strict scrutiny. -EV] The Court concludes that they have not, for the reasons articulated in the Report and Recommendation.

Congratulations to Jeff Rowes, Anya Bidwell, and Andrew Ward of the Institute for Justice on the win.

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Veterinarian's Advice May Be Protected by First Amendment - Reason

University of Florida officials in November blocked three professors from offering expert testimony in a lawsuit that challenged recently enacted state voting restrictions. But the university soon reversed course amid a public outcry.

This story also appeared in The Conversation

The criticism leveled at the university included charges that the scholars academic freedom had been violated, along with their First Amendment rights to free speech. The professors themselves filed a lawsuit against the university after the reversal, saying that the university had violated foundational principles of academic freedom and free speech.

From my perspective as a constitutional law scholar and lawyer, untangling how these two claims are both related and distinct can help us understand how these kinds of disputes ultimately pit robust protections for free inquiry and debate against public institutions desire to manage their operations as they choose. It turns out that courts reach very mixed results when deciding these disputes.

Public universities like the University of Florida are government employers. They sometimes restrict the speech of faculty members, who are their employees. For example, the University of Florida asserted that professors testimony in a lawsuit against the state was adverse to the universitys interests as a state of Florida institution when it first sought to block that testimony. Such restrictions can trigger both First Amendment and academic freedom concerns.

First Amendment law is the body of constitutional law that protects speech from the governments unjustified interference. For example, it prohibits the government from punishing critics for speaking out.

Academic freedom describes an academic communitys customs and practices that allow free intellectual inquiry and debate. These customs and practices help advance universities mission of creating and disseminating knowledge.

Under these customs and practices, for instance, scholars have the freedom to choose which topics to explore and which conclusions to draw.

Academic freedom protections are enforced by academic communities, like universities. First Amendment protections are enforced by courts.

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First Amendment law generally prohibits the government from restricting individuals right to speak freely. But the First Amendment rules that apply to the government when it limits the speech of its own employees are much more government-friendly, allowing greater restrictions of those workers speech.

Under these rules, the First Amendment protects a public employees speech as an individual citizen on a matter of public concern, so long as that speech does not unduly interfere with her government employers operations.

So, for example, the First Amendment would protect a public school teachers letter to the editor or social media posting that criticizes the mayor. The lawsuit filed by the University of Florida professors who were originally told they couldnt give testimony similarly argues that, through that testimony, the professors sought to offer their views as individual citizens on the important matter of voting rights.

In contrast, according to the Supreme Court, public employees speech pursuant to to their official duties is entirely unprotected by the First Amendment.

According to one landmark ruling, thats because government employers must, as a practical matter, have power over their employees job-related speech, to control what the Supreme Court called what the employer itself has commissioned or created. In other words, what a person says as part of her official duties as a government employee is not protected by the First Amendment. This is so, according to the court, even when the employees job-related speech is on a matter of great concern to the public.

The Supreme Court first announced this rule in a 2006 decision called Garcetti v. Ceballos. In that case, the justices rejected a prosecutors claim that he was exercising his First Amendment rights to free speech and should not have been punished by his governmental employer for his internal memo that questioned a warrants legitimacy.

Lower courts now frequently apply the Garcetti ruling to dismiss the First Amendment claims of government workers punished for truthfully reporting government misconduct when it was their job to report it.

For example, courts found that the First Amendment did not protect public health care workers who were disciplined after conveying their concerns about patient care. Likewise, it didnt protect police officers who were fired after reporting public corruption.

The Garcetti ruling sometimes makes it hard to figure out when public employees speech occurs pursuant to their official duties and thus loses any First Amendment protection.

One court even applied Garcetti to conclude that the First Amendment permits the government to punish a public employee for truthfully testifying that a state legislator on a state agency payroll had not been reporting to work when the employees testimony involved information that he acquired on the job.

Fortunately, the Supreme Court reversed that decision in Lane v. Franks, holding that the First Amendment protects a public employee who provided truthful sworn testimony when his job duties did not ordinarily involve such testimony.

Another important question that remains unanswered is whether the Garcetti ruling strips public university faculty members of First Amendment protection for their research, teaching and other job-related speech. Its a First Amendment question complicated by its intersection with academic freedom protections.

The Supreme Court has emphasized that academic freedom is key to universities mission of creating and disseminating knowledge. This mission, the justices said, advances First Amendment values by contributing to the marketplace of ideas and a vibrant democracy.

The court relied on this observation in two mid-20th-century decisions to say that the First Amendment protected universities from legislatures that sought to squelch unorthodox beliefs or unpopular expression. Lawmakers had tried to do that by requiring loyalty oaths of faculty members or by investigating faculty members allegedly subversive activities.

If the First Amendment protects universities from that sort of legislative interference with their academic mission, does it also protect public university faculty members from employer interference with their job-related speech?

Decades later in the Garcetti case, the Supreme Court punted on this question. Its still not clear whether the First Amendment protects public university faculty members research, teaching or other on-the-job speech from their employers restrictions.

Regardless of how the Supreme Court ultimately rules on this First Amendment question, academic freedom principles which rely on academic communities themselves for their enforcement rather than on courts can still provide an independent source of protection for faculty members job-related speech.

In other words, universities themselves can choose to respect those principles in their treatment of their faculty members.

For these reasons, those who objected to the University of Floridas efforts to silence its professors testimony argued not only that the university was violating the First Amendment, but also that it was violating its own institutional commitment to academic freedom.

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Editors note: The University of Florida is a supporting member of The Conversation.

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Professors free speech rights can clash with public universities interest in managing their employees - The Current GA

Despite his claims to the contrary, then-President Donald Trump lost the 2020 election but his campaign lawyer Sidney Powell apparently did very well for herself. We recently learned Powell raised over $14 million for her Defending the Republic nonprofit group using baseless claims about fraud in that election.

Its unclear where all that money went. Federal prosecutors have subpoenaed the financial records of Defending the Republic and a related political action committee, also organized by Powell.

Spreading fake news to ask for money is commercial speech, and courts enforce laws criminalizing fraud.

Lets be clear about something: Spreading fake news alone may be protected speech under the First Amendment. But spreading fake news to ask for money is commercial speech, and courts enforce laws criminalizing fraud. While Powell may argue that she believed her claims, there is no First Amendment right to lie to people to get their money.

Trump himself has shown the profitability of this model. A minor agitator suspended by Twitter for repeatedly lying might start a GoFundMe account and complain to sympathetic donors about being canceled by Big Tech. A former president, however, can open a Super PAC and rake in millions claiming to be a victim of both election fraud and cancel culture. And Trump has done just that, to the tune of $255.4 million raised in the eight weeks during which he sought to overturn the election result.

Since the 2020 election, I have received dozens of email solicitations from Trump or someone writing on his behalf asking for money. Most of these fundraising pitches come with either false statements of fact about the 2020 election or about President Joe Biden or some other Democrat or both.

Lies that people get away with in politics can result in indictments in the charitable fundraising world. Former White House adviser Steve Bannon was indicted in August 2020 for the Build the Wall charitable scam he orchestrated, allegedly using the money he hustled in the name of supporting Trumps border wall for his own purposes. Trump pardoned Bannon before he could be tried for this alleged fraud.

Understandably, prosecutors and courts accept the fact that First Amendment protection gives somewhat more leeway for untruths in political speech, even when accompanied by campaign fundraising, than is allowed when raising money for a business transaction or an erstwhile charitable endeavor like Bannons. In a public sale of securities to investors, for example, it is illegal not only to lie, but also to fail to disclose something that needs to be disclosed for what you have already said not to be misleading. If we applied that standard to politicians in their fundraising pitches, most of them would be in jail by now.

On the other hand, there must be limits to what politicians, political parties and independent organizations organized for political purposes permissibly can say to raise money.

Telling someone that Trump won the 2020 election, or that there was enough election fraud to flip the results, were false statements, and Powell almost certainly knew as much.

For example, in 2018, I lost a primary election against Minnesota Sen. Tina Smith. If after losing the primary I had sent out emails, tweets and mailers telling people that I had won the primary and that they should send me money to run in the general election, that would have been a fraud. A candidate can and should go to jail for that.

But what about a candidate who loses an election by a wide margin, ought to know he has no possible legal way of changing the election result, but still solicits money from the public to pay lawyers to file frivolous lawsuits challenging the election? That presumably is a fraud too, unless the people who send their money are told that there is little or no chance that the lawsuits will succeed or that the election results will change. As we know, that has not been the case with Trumps missives.

Granted, there are close elections in which both candidates would be within their rights to hire lawyers and raise money to pay for litigation. Millions were raised and spent before the Supreme Court ruled in Bush v. Gore in 2000. John F. Kennedys win over Richard Nixon in 1960 was not so close, but that election was close enough 49.72 percent versus 49.55 percent of the popular vote that Nixon could credibly have raised more money and gone to court with some chance of success (though not much) to try to prove election fraud in Illinois.

The fact that Nixon who later became the second most dishonest president in American history did not stoop to that level says something about the relative standing of truth in American politics then and now.

The 2020 presidential election wasnt a landslide like we saw in 1964 for Lyndon Johnson or Ronald Reagans back-to-back sweeps. But Bidens margin of victory 51.3 percent to 46.8 percent in the popular vote and 306 to 232 in the Electoral College was far larger than in many recent presidential elections. Short of sedition, insurrection and a military coup, the result was not going to change. Raising money for the purpose of changing the election result was fraud.

Back to Powell. She is a lawyer, which means that she is subject not only to criminal prohibitions on fraud, but also to state bar ethics rules, which largely mirror that of the American Bar Association.

The American Bar Association Rule 4.1 clearly states that In the course of representing a client a lawyer shall not knowingly: make a false statement of material fact or law to a third person. Telling someone that Trump won the 2020 election, or that there was enough election fraud to flip the results, were false statements, and Powell almost certainly knew as much. The fact that she raised millions making such false statements makes it that much worse and we still dont know what happened with the money.

Freedom of speech is critical to a representative democracy, and sometimes this means that we must tolerate politicians and their supporters who lie. But there are legal limits to lying, even in politics. Lying about nonexistent election fraud to a turbulent crowd ahead of their storming the Capitol and threatening to kill the vice president is incitement of insurrection, which can be criminal. Likewise, lying about demonstrable facts concerning an election that is already over to get people to send you money which cannot possibly be used to change the election result should be prosecuted as fraud.

After the 2020 election, the Trump political operation turned from its habitual distortion of facts for political purposes to outright fraud to raise money, some of which is unaccounted for. The Department of Justice and state attorneys general need to investigate and, if criminal fraud can in fact be shown, press charges against these political scam artists.

Richard W. Painterwas the chief White House ethics lawyer from 2005 to 2007, underPresident George W. Bush. He is currently the S. Walter Richey Professor of Corporate Law at the University of Minnesota, and is a graduate of Harvard College and Yale Law School.

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Sidney Powell's election lie cash grab must be treated as fraud - MSNBC