Category Archives: First Amendment

The Elizabeth Dole Foundation fired funeral event planner Tim Unes ahead of former Republican Kansas Sen. Bob Doles funeral on Thursday.

Uness crime? He was subpoenaed by the House Select Committee on Jan. 6 for exercising the sacred constitutional right of free assembly.

The firing didnt come at the demands of House Speaker Nancy Pelosi, however. Nor did it come from Wyoming Congresswoman Liz Cheney, one of two Pelosi-appointed Republicans to serve on the committee. Uness termination came at the behest of one of the highest elected Republicans in the country: Mitch McConnell.

In a Congress still reeling from that days violence, representatives of Senator Mitch McConnell of Kentucky, the Republican leader, raised the issue this week with a contact for the Dole family, The New York Times reported, who quickly agreed that Mr. Uness role in the event would be limited and that he would not be attending the ceremony in the Capitol.

The founder and president of Event Strategies Inc., Unes was among the first subpoenaed by Pelosis partisan probe over his role as stage manager for the White House rally on the same day as the Capitol riot. Despite no connection to the congressional security breach which transpired before President Donald Trump had finished speaking on Jan. 6, Unes is among dozens whose private practice of peaceful protest has been declared criminal by the weaponized probe smearing political dissidents.

While subpoenaed, Unes has not been accused of any wrongdoing.

Uness exercise in the First Amendment demonstration has now cost him the ability to honor the deceased legendary war hero with voluntary service at Doles funeral.

This evening, I made Senator Elizabeth Dole aware of Mr. Uness alleged involvement in the events of Jan. 6, 2021, Steve Schwab, the chief executive of the Elizabeth Dole Foundation, told The New York Times on Wednesday. Senator [Elizabeth] Dole was previously unaware of his participation and terminated his volunteer role.

Bob Dole, who survived near-fatal wounds in the Italian campaign during World War II and went on to become Senate majority leader and the 1996 Republican nominee for president, died Sunday at the age of 98.

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McConnell Canceled A Dole Funeral Worker Over First Amendment Protest - The Federalist

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.

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.

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.

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 as they choose - The Conversation AU

Law360 (December 9, 2021, 7:51 PM EST) -- Discrimination or church-state separation? That's the question the U.S. Supreme Court justices debated this week in a blockbuster First Amendment case over a Maine private school subsidy program that excludes "sectarian" schools. Law360's The Term dives into the arguments on this week's episode.

This Week

S3, E10: A First Amendment Fight

Over Maine's School Subsidies Your browser does not support the audio element.

Each week onThe Term,Supreme Court reporter Jimmy Hoover and co-host Natalie Rodriguez break down all the high court action.

This week, the hosts discuss Wednesday's oral arguments in Carson v. Makin, a constitutional challenge to a Maine program...

In the legal profession, information is the key to success. You have to know whats happening with clients, competitors, practice areas, and industries. Law360 provides the intelligence you need to remain an expert and beat the competition.

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The Term: A First Amendment Fight Over School Subsidies - Law360

From Borkowski v. Baltimore County, decided yesterday by Judge Deborah K. Chasanow (D. Md.):

This case began as a putative class action revolving around the investigation and handling of sexual assault allegations by various Baltimore County and University of Maryland affiliated entities and individuals. After two motions to dismiss, the sole remaining claim is one for First Amendment retaliation brought by Plaintiff Anna Borkowski against the remaining Defendants.

Ms. Borkowski's claim centers on Defendants' response to her efforts in March 2018 to have her alleged rape charged and prosecuted. The alleged assault occurred over the night of October 19 and into the early morning hours of October 20, 2017. At the time, Ms. Borkowski was a 21-year-old student at Towson University. She and a friend met up for happy hour after classes. They continued to drink throughout the evening and met up later with three men Ms. Borkowski had previously been classmates with. After drinking and dancing together, they went to her friend's apartment. The men encouraged the women to continue drinking.

Ms. Borkowski remembers little of what happened next, and her friend has no memory of it. As of her January 2021 deposition, Ms. Borkowski has only one brief memory of recognizing that two of the men were having sex with her while the third man had sex with her friend, who appeared to be passed out. In that moment, Ms. Borkowski "felt like [she] was paralyzed" and feared that she would be physically harmed by the men's actions. Ms. Borkowski does not have any memory of the men either threatening her with force or using force against her. But both women were injured when they awoke the next day. Ms. Borkowski believes that her injuries were consistent with force being used to facilitate sex. Ms. Borkowski and her friend immediately went to the police station to report the incident. At that time, Ms. Borkowski also had a brief memory of sex with two men on the balcony.

The State's Attorney's Office declined to bring charges. Ms. Borkowski was upset by the decision and spoke with multiple individuals about it in November and December, including Assistant State's Attorney Dever, Investigator Fox, and Detective Burrows. Eventually, she decided she "wanted to give it another shot" by requesting that a District Court Commissioner charge her alleged assailants. (See id., at 129). The Commissioners are "today's equivalent of a magistrate[.]"They receive sworn applications for charges and determine whether there is probable cause to issue them. State's Attorneys may, however, terminate or dismiss a charge by entering a nolle prosequi.

In March 2020, Ms. Borkowski filed two applications with different Commissioners. She believed that charges would issue and hoped that a prosecution would ensue. Defendants, however, viewed Ms. Borkowski's attempts to apply for charges as futile, because they would move to dismiss any charges unless Ms. Borkowski had new evidence. There is no evidence, however, that Defendants told Ms. Borkowski this fact.

The first application was denied after the Commissioner consulted with Assistant State's Attorney Dever. After obtaining representation, Ms. Borkowski added more detail to her second application, including citing to Maryland's first-degree rape statute. Both applications alleged, however, that the assailants had sex with Ms. Borkowski "by force." On March 20, the second application was approved and charges were issued against all three alleged assailants for various offenses, including first-degree rape.

Assistant State's Attorney Dever described her reaction to the charges as follows: "I was very upset.I wanted to try and communicate somehow that she needed to stop going to the Commissioner's Office[.]"She consulted with State's Attorney Shellenberger and he instructed Ms. Dever to have detectives speak with Ms. Borkowski. They wanted an in-person meeting despite having Ms. Borkowski's contact information and knowing that she had an attorney. On Ms. Dever's instructions, Investigator Fox asked Detective Burrows "to go talk to Ms. Borkowski, and talk[ ] to her about no further charges.[In other words,] asking her not to go to another Commissioner or go to the Commissioner to seek charges again." Detective Burrows' notes may suggest she believed that she was to tell Ms. Borkowski that she needed to "stop going to comm[issioner]" and that, if she didn't, Ms. Borkowski faced a "civil lawsuit or worse[,] criminal charges[.]"

On March 22, Detectives Burrows and Tomas obtained Ms. Borkowski's class schedule and went with an armed and uniformed county police officer to Ms. Borkowski's home in Baltimore City at a time she was not supposed to be in class. The officer had never before been asked to accompany or escort county detectives in Baltimore City, nor has he since. Ms. Borkowski's grandmother answered the door. The officer told her she was being recorded and Detective Burrows proceeded to ask her questions about Ms. Borkowski's whereabouts. The encounter lasted less than two-and-a-half minutes. The detectives stated that they wanted to speak with Ms. Borkowski about charges she had filed and did not elaborate further. Ms. Borkowski learned about the encounter from her grandmother later that day.

Detective Tomas then called Ms. Borkowski twice, exchanged voicemails with her, but did not speak with her directly. After speaking with Ms. Borkowski's lawyer, he and Detective Burrows informed the SAO Defendants that Ms. Borkowski would only speak to them with her attorney present. State's Attorney Shellenberger then decided "that was the end of it." Defendants concluded that "there was now a lawyer involved, and so [they] did not feel like [a] meeting had any purpose." At no time did Defendants explicitly deliver the message to Ms. Borkowski that she should stop filing charges. They successfully dismissed the charges over Ms. Borkowski's objections, however.

"As a general matter, public officials may not respond to constitutionally protected activity with conduct or speech that would chill or adversely affect this protected activity. That is so even if the act, when taken for different reasons, would have been proper."

There is a genuine dispute of material fact about whether Defendants' actions, viewed together, conveyed a message that the SAO Defendants and the Detective Defendants would impose negative consequences on Ms. Borkowski if she continued to apply for charges. Both parties acknowledge Defendants did not explicitly tell Ms. Borkowski to stop filing applications or else face civil or criminal punishment. They instead dispute whether Defendants' actions implicitly conveyed that message, pointing primarily to: (1) the visit by Detectives Burrows and Tomas to the home Ms. Borkowski shared with her grandparents, and (2) the two phone calls made by Detective Tomas to Ms. Borkowski.

A reasonable jury could conclude that Defendants' actions conveyed a message to stop or face consequences. Ms. Borkowski's grandmother told Ms. Borkowski that she "believed that the visit was an [attempt] to intimidate" her regarding her applications for charges. Ms. Borkowski believes that her grandmother reached this conclusion "[b]ecause they showed up with an armed officer and they kept asking where I was, when I was due home, if they knew that I had filed charges, and why I had filed charges[.]" Ms. Borkowski's grandmother also found the visit confusing because it was unnecessary and didn't seem to achieve anything. From her perspective, the Detectives asked questions to which they should have known the answers and they could easily have resolved over the phone. This confusion led her to question "[w]hat they were trying to accomplish by [the visit]." Ms. Borkowski learned about the visit at approximately the same time she received two phone calls and a voicemail from Detective Tomas. The voicemail, though "not out of the ordinary," provided little detail about why Detective Tomas wanted to speak with Ms. Borkowski. It just said, "This is Detective Thomas. Give me a call back."

In sum, the visit and phone calls occurred unexpectedly, nearly simultaneously, without explanation, and were carried out by detectives and an armed police officer outside their jurisdiction. A reasonable jury could find that these facts amounted to a "gratuitous show of uninvited law enforcement interest" that involved no explicit threats but was implicitly menacing. It would be a small step to find then that this message was intimidating and could chill First Amendment rights.

This conclusion could be supported by the status of, and relationship between, the parties. Ms. Borkowski was a recently traumatized 21-year-old student. Defendants were law enforcement officials accompanied by armed police. In addition, Ms. Borkowski might reasonably have believed that Defendants were antagonistic toward her or did not believe her because they opted not to prosecute her case.

Ms. Borkowski also points to other evidence that could support finding Defendants delivered a threatening message. Although not necessary because Defendants fail to meet their burden, the evidence strengthens that conclusion. For example, Ms. Borkowski was also later made aware that Detective Defendants obtained her class schedule. A jury might also find evidence of Defendants' motives relevant to interpreting any implicit message delivered. Both Defendants' statements that they wanted to tell Ms. Borkowski to stop filing charges and their abrupt cessation of all contact after Ms. Borkowski insisted that her attorney be present could support an inference that Defendants sought to bully Ms. Borkowski.

The result is not undermined by the fact that Ms. Borkowski's grandmother did not feel threatened by the home visit nor that Ms. Borkowski continued to pursue legal recourse. [T]he test for an adverse retaliatory action is an objective standard. While evidence of someone's subjective response is relevant to the analysis, it is not dispositive. Here, Ms. Borkowski's grandmother's subjective response could be outweighed by other characteristics like Defendants' simultaneity, vagueness, and show of authority. A jury could also find that Ms. Borkowski was uncommonly committed to her pursuit of justice, as evidenced by her continued efforts to appeal the dismissal of her charges.

[And as to qualified immunity, an earlier precedent] provided notice in 2000 that threats or intimidation (even by speech) violates the First Amendment if done in retaliation of protected speech. Moreover, [another case held that] the First Amendment is violated through "self-censorship" when conduct would deter a person of ordinary firmness from exercising their rights. Either of these cases disproves the Defendants' claim that "no caselaw" exists clearly establishing this right to be free from intimidation in applying for a statement of charges.

There's more in the opinion, including with regard to when filings of charges are viewed as false and thus as constitutionally unprotected speech or petition (I oversimplify here slightly); read the whole opinion for more.

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Armed Police Visit to Grandmother, Aimed at Getting Granddaughter to Stop Trying to File Rape Charges, May Be a First Amendment Violation - Reason

LONDON A British court ruled on Friday that Julian Assange can be extradited to the United States to face charges that could result in decades of jail time, reversing a lower-court decision in the long-running case against the embattled WikiLeaks founder.

The ruling was a victory, at least for now, for the Biden administration, which has pursued an effort to prosecute Mr. Assange begun under the Trump administration. Mr. Assange will seek to appeal the decision to Britains Supreme Court, according to his legal team.

The Justice Departments decision to charge Mr. Assange under the Espionage Act in connection with obtaining and publishing secret government documents has raised novel First Amendment issues and alarmed advocates of media freedom. But because he has been fighting extradition, those questions have not been litigated and his transfer to the United States could set off a momentous constitutional battle.

The extradition case in Britain has not turned on whether the charges against Mr. Assange are legitimate a lower-court judge ruled they were but on whether prison conditions in the United States are too harsh for his mental health.

In ruling that Mr. Assange can be extradited, the High Court in London said that it was satisfied by the Biden administrations assurances that it would not hold him at the highest security facility in the United States which houses the nations worst criminals and that, if he were convicted, it would let him serve his sentence in his native Australia if he requested it. The United States also said Mr. Assange would receive any necessary psychological treatment.

In January, the lower court judge had rejected the extradition request on the grounds that Mr. Assange might be driven to suicide by American prison conditions.

Several doctors have said Mr. Assange suffers from depression and memory loss and could attempt suicide if he were extradited.

Wyn Hornbuckle, a spokesman for the Justice Department, said the government was pleased by the ruling and would have no further comment. But an American lawyer for Mr. Assange, Barry J. Pollack, called it disturbing that the British court had accepted the American governments vague assurances of humane treatment.

The U.K. court reached this decision without considering whether extradition is appropriate when the United States is pursuing charges against him that could result in decades in prison, based on his having reported truthful information about newsworthy issues such as the wars in Iraq and Afghanistan, he said.

Mr. Assange fled to the Ecuadorean Embassy in London in 2012 when he was facing an investigation on accusations of sexual assault in Sweden, which was eventually dropped. He said he feared his human rights would be violated if he were extradited in that case.

He remained in the embassy for seven years until he was ejected in 2019. The United States unsealed an indictment against him on hacking charges on the day of his expulsion, and charged him under the Espionage Act weeks later. He has been detained in Londons Belmarsh prison since 2019.

The case against Mr. Assange centers on his 2010 publication of diplomatic and military files leaked by Chelsea Manning, a former Army intelligence analyst not on his publication during the 2016 election of Democratic emails stolen by Russia.

Over the course of three indictments developed during the Trump administration, prosecutors have made two sets of accusations.

The first is that Mr. Assange participated in a criminal hacking conspiracy, both by offering to help Ms. Manning mask her tracks on a secure computer network and by engaging in a broader effort to encourage hackers to obtain secret material and send it to WikiLeaks. The other is that his solicitation and publication of information the government deemed secret violated the Espionage Act.

Hacking is not a journalistic act. But the second set of charges could establish a precedent that journalistic-style activities like seeking and publishing information the government considers classified may be treated as a crime in the United States a separate question from whether Mr. Assange himself is considered a journalist.

Mr. Assanges fianc, Stella Moris, in a statement called Fridays decision a grave miscarriage of justice. Ms. Moris and Mr. Assange have two children, conceived while he was in the Ecuadorean embassy in London.

What are the criminal charges brought on by the U.S.? After his expulsion from the embassy, the U.S. unsealed an indictmentagainst Mr. Assange and soughthis extradition. Prosecutors have accused him of violating the Espionage Actfor his role in the 2010 disclosures and of participating in a hacking conspiracy. (He is not charged for the publication of the D.N.C. emails in 2016.)

Why does his case raise media freedom issues? The solicitation and publication of government secrets is a journalistic-style activity, whether or not Mr. Assange counts as a journalist. That raises novel First Amendment issuesand could establish a precedent constraining investigative journalism about military, intelligence and diplomatic matters.

Where is Mr. Assange now? After he was expelled from the embassy, he was sentenced to 50 weeks in jail in London for for breaching bail conditions related to the rape inquiry; he has remained in prison while the U.S. extradition case is pending.

Can the U.S. extradite him? In January, a court rejected the U.S. extradition requeston the grounds that Mr. Assange might be driven to suicide by American prison conditions. The Trump administration appealed, and the Biden administration later made assurances of humane treatment. On Dec. 10, a higher court ruled that Mr. Assange can be extradited. His lawyer said they will seek to appeal.

Kristinn Hrafnsson, the editor in chief of WikiLeaks, warned that Mr. Assanges life is once more under grave threat, and so is the right of journalists to publish material that governments and corporations find inconvenient.

He added, This is about the right of a free press to publish without being threatened by a bullying superpower.

Activists who gathered outside the courthouse in central London erupted in protest after the news of the decision filtered outside. And rights groups quickly condemned it.

Christophe Deloire, the head of Reporters Without Borders, said in a statement that we defend this case because of its dangerous implications for the future of journalism and press freedom around the world.

Jameel Jaffer, the executive director at the Knight First Amendment Institute at Columbia University, who testified in the extradition proceeding, reiterated profound concerns about the case in a statement.

The indictment, he said, focused in large part on activities that investigative journalists engage in routinely.

The message of the indictment is that these activities are not just unprotected by the First Amendment but criminal under the Espionage Act, he said. The Trump administration should never have filed this indictment, and we call on the Biden administration again to withdraw it.

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U.K. Court Rules Julian Assange Can Be Extradited to U.S. - The New York Times

ALBUQUERQUE, N.M., Dec. 8, 2021 /PRNewswire/ --Thanks to the widely publicized Free Britney movement, legally binding adult conservatorships (guardianships/conservatorships in New Mexico), have begun to emerge from the shadows. It's about time, says Lonie Rosenstiel, the author of Protecting Mama: Surviving the Legal Guardianship Swamp, a new eBook and paperback.

Court-appointed legal guardianships are often put in place to protect the frail elderly who cannot make their own decisions. As of 2018, the AARP estimated that 85% of an estimated 1.8 million individuals under guardianship in the United States were over 65.

But these guardianships do not always go well, sometimes imposing hardships on families that may include prohibitions against speaking publicly about the individual and facing large fines if they do so.

Rosenstiel's elderly mother, a retired professor with dementia, was placed under such an arrangement, with dire results. As Rosenstiel notes in the book, the conservator prevented her from seeing her mother for nearly three years, against her mother's wishes and her own, and forced her mother to remain in her bed for the rest of her life after suffering a broken hip.

Her mother made Rosenstiel promise to write a book exposing the flaws in the guardianship system to empower other families caught in its web. Rosenstiel went back to school to earn a master's degree in public health and undertook a vigorous research process to honor her mother's request. To be able to speak out without legal reprisals, she hired a lawyer who succeeded in lifting the gag order she was under; such gag orders continue even after the death of the protected individual. Rosenstiel says, "To the best of my knowledge, I'm the only person ever to succeed in getting a court-imposed secrecy order covering guardianship material lifted." She spent more than $1 million learning the tips she passes on in her book. She says, "Even more revolutionary is my conviction, based on my own experience, that a group of relatives of wards, working together in the right way, have the power to change the current undesirable situation."

She writes, "My own trip through the Salvador Dali world of guardianship has led me to question the legal process and the assumptions of individuals within the legislative, legal, medical, and guardianship systems. Most of these folks seem to believe that, at best, all families consist of bumbling, meddling fools who present inconveniences to beneficent, efficient bureaucrats and, at worst, consist only of sadists, murderers and thieves from whom elders need protection."

About Lonie Rosenstiel

Lonie Rosenstiel and her work have been featured in The New York Review of Books, Los Angeles Times, Albuquerque Journal, Chicago Tribune, the Boston Globe, the Cleveland Plain Dealer and more. Originally a classical violinist performing in the U.S., France and Colombia, she earned a Ph.D. from Columbia University in musicology and started a small publishing company with her literary agent husband. She earned degrees in counseling ministry from The New Seminary in New York City, then a master's degree in East Asian medicine, and finally another in public health. In addition to her book, she offers an online course (through Dayspring Resources) for adult children called "A Roadmap for Baby Boomers and Those Who Love Them."

Contact: Lonie Rosenstiel, (505) 317-2405; [emailprotected]https://smarturl.it/ProtectMama

SOURCE Leonie Rosenstiel

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Author of New Book Fights for First Amendment Rights of Families Caught in the 'Legal Guardianship Swamp' - PRNewswire

The BDN Opinion section operates independently and does not set newsroom policies or contribute to reporting or editing articles elsewhere in the newspaper or onbangordailynews.com.

Jeffrey Sikkenga is executive director of the Ashbrook Center at Ashland University. He wrote this for InsideSources.com.

We live in a time of division and uncertainty. Somepeople say that the only path forward is to fundamentally update our government, including such basic documents as the Bill of Rights.

At first glance, it might seem like a good idea. After all, the Bill of Rights changed the original Constitution by adding 10 amendments. And now the Bill of Rights itself is 230 years old an anniversary we observe on Dec. 15. Surely, weve made progress since then. Surely, we know better than James Madison and the other old, dead white men who wrote and adopted the Bill of Rights. Surely, its time.

Dont be so sure.

Those who advocate updating the Bill of Rights need to remember what it is they want to change. Founders like Madison knew that government does not give us our rights. They come from the laws of nature and of natures God, as the Declaration of Independence puts it. The Bill of Rights proclaims fundamental rights like freedom of speech and freedom of religion we already have as human beings and citizens. Even if the First Amendment didnt exist, for example, every American would still have the right to communicate their opinions and practice their faith. The founders wrote down those rights just to make sure everyone understood the liberties they already had.

To update the Bill of Rights, then, is to try to alter the fundamental principles of a free society. Its like trying to update the law of gravity. We can understand more deeply what gravity means, but it doesnt change the principle.

So the real question is not whether we should update the Bill of Rights. The question is whether we truly have the knowledge and understanding to exercise those rights and govern ourselves responsibly?

Unfortunately, too many Americans especially young people dont know the basic facts of our history and dont have even a rudimentary understanding of such great documents as the Constitution and Bill of Rights. According to the most-recent National Assessment of Education Progress, released last year, only 24 percent of eighth-grade students scored proficient in civics and even fewer, 15 percent, were proficient in history. Those students will soon be graduating from high school.

Even worse, too many young people dont understand why America deserves their respect and devotion.A Gallup survey showed that only 24 percent of young people are extremely proud to be American. According to the survey, the gap between young people and older generations is the largest ever.

Why? Unlike previous generations, too many young Americans are not discovering the true story of our country. They are not learning that America was founded on principles of freedom and that our history is the story of our struggle to live up to those principles. They are not learning, as the great Black abolitionist Frederick Douglass said, that the Constitution and its Bill of Rights is a glorious liberty document.

Of course, the Constitution wasnt perfect. It has been amended 27 times, including the Bill of Rights. But every amendment should be a change that brings the document more not less in line with our founding principles of individual liberty, personal responsibility and limited government. Thats what the Bill of Rights did, and thats why we need to keep it as is. Changing it now would be going backward, not forward.

To truly go forward, we need to change the civic education of Americans especially our young people. We need to put aside the history and civics textbooks and help students dig into the founding documents themselves like the Declaration of Independence, Constitution and the Bill of Rights. Students need to rediscover the founding principles that unite us that make us one people, as the Declaration says.

To bring the country back together and go forward together, the answer is not to change our Bill of Rights. The answer is to restore our shared history and principles to their rightful place in the hearts and minds of the American people, especially our young people.

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It's not necessary to change the Bill of Rights - Bangor Daily News

Proposals to regulate algorithms are tempting, but many likely would run into the same First Amendment barriers as direct speech regulations. The First Amendment protects hate speech, misinformation and a good deal of other harmful speech. Regulating the algorithm would not avoid these problems. Courts have held that laws chilling the distribution of protected speech raise First Amendment concerns.

Some concerns that people raise about algorithms involve the platforms collection and use of personal data to target users with harmful content. Congress could address these issues more directly and without the same constitutional problems as speech restrictions via a strong national privacy law.

What is the most dangerous bill that has been proposed, and what is the best idea you have seen?

Its hard to pick just one dangerous bill. Im concerned about many proposals at the state and federal levels to restrict platforms ability to moderate. Conservatives have argued that platforms have unfairly blocked them from expressing their views. But the First Amendment protects platforms ability to exercise this discretion, no matter how unfair it might seem. Im worried about the Klobuchar-Lujan bill, which, during a public-health emergency, would remove platforms Section 230 protection for any health misinformation that a platform algorithmically promotes in a nonneutral manner. How does the bill define health misinformation? It leaves that to guidance issued by the secretary of health and human services. It shouldnt be difficult to imagine a scenario in which an H.H.S. secretary abuses this remarkable authority to suppress criticism of the administration. This comes far too close to a Ministry of Truth for my comfort.

Im intrigued by [Stanford Law professor] Nate Persilys proposal to require platforms to provide outside researchers with access to data. One of the biggest problems with the current debate is the lack of transparency among the large social media companies. The proposal would help to address this and inform the debate. But any such requirement would need to address the very real privacy concerns of providing access to such data. Relatedly, Ill give a plug for a nonpartisan, expert fact-finding commission that Ive been proposing for the past few years.

I also like some elements of the PACT Act. The bill contains many reforms, including an exemption to Section 230 if a platform declines to remove content that has been found defamatory in a lawsuit between the subject and the poster. Section 230s co-author, former congressman Chris Cox, does not think that Section 230 should cover such cases. I agree.

Will tech companies have to rely on other defenses like the First Amendment to protect themselves if Section 230 gets worn down? What does the post-230 world look like?

Many platforms have relied on other defenses in recent years, particularly as judges have increasingly voiced their distaste for Section 230. These defenses often involve more complex judicial inquiries than Section 230, requiring the platforms to engage in costly depositions, document production and other discovery. A trillion-dollar company like Meta could easily afford such expenses (and gee whiz, Meta is calling for Section 230 reforms). But a start-up that wants to be the next Meta probably couldnt. We dont know exactly what level of First Amendment protections courts would provide to online platforms, as Section 230s passage has made it mostly unnecessary for courts to determine that. But the First Amendment precedent, as applied to bookstores and other pre-internet defendants for decades, suggests that even without Section 230, plaintiffs would have a heavy burden to persuade courts to impose liability on platforms.

Read more:
Opinion | We Need Less Talk and More Action From Congress on Tech - The New York Times

There's a new variant of partisan suspicion in America: The other siderefuses to play by the rules and must be stopped at any cost or our countryas we know it is over.

Whether America is really on the brink of catastrophe may be debatable, but the rulebreaking critique has truth to it, and both sides are right that the other is guilty. Republicans and Democrats alike are "hacking" the Constitution, upending longstanding procedures and policies when the rules mean they lose. They're evadingpublic scrutiny and accountability and further corrodingconfidencein government and other essential institutions.

The hacks I have in mind are things likeSenate Bill 8(SB8), the Texas heartbeat act, passed by a Republican legislature and signed into law by GOP Gov. Greg Abbott. Challenges to the law are nowunder review by the Supreme Court, and the justices may hand down their decision at any time.

SB8 bans most abortions performed after roughly six weeks of pregnancy. What makes it unusual, compared to something likethe Mississippi law outlawing abortions after 15 weeks that the court consideredlast week,is the mechanism of enforcement.SB8lets any U.S. citizen (not just Texans) file a civil lawsuit for $10,000 in damages against abortion providers and anyone else who enables a pregnant woman to get an abortion in Texas after the sixth week of pregnancy.

The government doesn't pursue legal action against abortion providers and enablers, as it would do were abortion criminalized.Instead, the lawsuits are filedby private citizensagainstother private citizens.

Wherever you stand on the abortion debate, this legal hack is insidious. It could be replicated to directly attack any federal constitutional right, including many less controversial than abortion. It sidesteps constitutional protections byencouraging ideological adversaries to become bounty hunters.

During oral arguments, the justices were troubled by this prospect. Several suggested Second Amendment opponents could use a similar law to sue licensed gun store owners for selling legal weapons. Likewise, you could see booksellers or librarians sued for offering controversial or erotic literature, materials protected by the First Amendment, at venues where children could view it.The possibilities aren't endless, but they're extensive.

Another hack involves changing election management and results after votes have been cast. "GOP legislators in at least 14 states have enacted 23 new laws that empower state officials to take control of county election boards, strip secretaries of state of their executive authority, or make local election officials criminally or financially liable for even technical errors," the Pew Charitable Trust's Stateline news servicereports, citing "Protect Democracy, a left-leaning Washington, D.C.-based voting rights nonprofit."

Some of these laws are innocuous, and each one should be judged separately, but the overall trend is concerning. Some may recklessly punish officials for innocent mistakes,and though vigilance is in order, there's also risk in paranoid reaction to imagined threats.The Washington Post reports that diehard supporters of former President Donald Trumpare moving to place allies on state and local elections boards, perhaps enabling questionable "audits" and other challenges to 2022 and 2024 election results. The paper has also coveredTrump-backed secretary of state candidates in several states who've hinted they might refuse to certify election results they don't like, sowing uncertainty that could lead to chaos.

Finally, something bizarre is unfolding in North Carolina, my home state.Progressive activists led by the NAACP have asked justices on the state Supreme Court to forcibly and illegally block two of their colleagues from ruling on a lawsuit. The case challenges two constitutional amendments a voter ID requirement and an income tax cap which the Republican-led statelegislature placed on the ballot in 2018. Voters approved them by comfortable margins.

In North Carolina, however, judges are elected in partisan races, and the two justices in question,Phil Berger Jr.and Tamara Barringer,are Republicans. Berger Jr.'s father is the powerful president pro tem of the state Senate, and Barringer was in the legislature when the amendments were put on the ballot. The NAACP says they have a conflict of interest and can't judge the case fairly.

But the case isn't a straight assessment of the amendments' merit, a scenario in which partisan alignment would more naturally raise questions. It's an arcane dispute about how they got on the ballot, a debate over a causal chain involving the2016 legislative districts, which were later declared unconstitutional, and whether that in turn renders any measure from the resultant legislative session illegitimate. And anyway, voters, not GOP lawmakers,were directly responsible for adding the amendments to the state constitution.

Beyond those factors, the NAACP suit should be a nonstarter because North Carolina'sconstitution offers no option of involuntarily removing a Supreme Court justice from a case (other than impeachment, which isn't the request here). Recusal is voluntary, andBerger and Barringer already declined to recuse themselves, as is their right. (Democratic Justice Anita Earls, former director of the Southern Coalitionfor Social Justice, which frequently sued the state legislature over election laws, has likewise declined to recuse herself from election law cases at Republican request.) That's why the NAACP's request for a court-created, extra-constitutional recusal system should be rejected out of hand but the court has a 4-3 Democratic majority, and it may take the hacking opportunity this case presents.

Just like state laws that would deputize private citizens to become bounty hunters and partisan officials packing election boards with unthinking loyalists,that would be a mistake, and one that would erodethe integrity of yet another democratic institution. We can't preserve liberal democracy if we make new and ever more dubious rules every time our side loses.

Follow this link:
The danger in hacking the Constitution - The Week Magazine

The Board of Directors for the ImagineIF Library reminds me of another book: A Confederacy of Dunces. That novel by John Kennedy Toole has its critics. Some dislike it so much they want to censor it, as others want to censor A Catcher in the Rye and Huckleberry Finn. Its an old story. Small-minded, small-time autocrats reel from text and pictures that dont square with their world view. They tut-tut and call for purging the shelves of works they find objectionable.

Somehow, we Americans are slow on the uptake. We say we support the U.S. Constitution but then balk at the very First Amendment.

Heres my advice to the pearl-clutchers who object to the books on the shelves. If you dont like em, dont read em! If you dont want your kid to read them, then pay attention to what your kid reads.

In my opinion, there are publications on the shelves of every library that arent worth the trees that died for them. But thats my taste. Everyone is entitled to make their own decisions on their way to checkout. Thats the American Way.

Our current Library Board doesnt understand this. Their bosses, the Flathead County commissioners, are asleep at the switch. Meanwhile our gem of a library is bleeding talented staff. How will we ever attract quality replacements under this regime?

Pretty please, O commissioners, correct this problem before more damage is done. Clean house and appoint board members who understand that libraries exist to put materials in the hands of the people, not take them away.

Ben LongKalispell

Read more:
Library Board Needs to Read Up on the Constitution - Flathead Beacon