Category Archives: First Amendment

Parents and community members attend a Loudoun County School Board meeting which included a discussion about critical race theory, in Ashburn, Va., June 22, 2021. (Evelyn Hockstein/Reuters)

Attacking woke curricula on First Amendment grounds wont work. Parents must instead hold school boards accountable in local elections.

When it comes to exposing the illegitimacy of the administrative state, Columbia Law School constitutional scholar Philip Hamburgers work has been invaluable. This past weekend, in a Wall Street Journal op-ed, he turned his attention to another pernicious progressive project: the conversion of the nations public schools into ideological-indoctrination factories that peddle woke, race-obsessed anti-Americanism.

Professor Hamburger is right to highlight this projects offensiveness to the parents of schoolchildren as among its worst features. That said, parental dissent, which is widespread but not unanimous, is just one reason why the project should be resisted. And Hamburger strains mightily not only to portray this dissent as the dispositive objection to progressive curricula, but to portray such curricula as a violation of the constitutional right to free speech.

It is an ill-conceived theory, and reliance on it will only disserve a critical cause by giving progressives an easy target to shoot at.

Hamburger asserts:

Education is mostly speech, and parents have a constitutional right to choose the speech with which their children will be educated. They therefore cannot constitutionally be compelled, or even pressured, to make their children a captive audience for government indoctrination.

It would be generous to describe these propositions as dubious. Lets assume for arguments sake that most pedagogy, like most human interaction, takes the form of speech, and therefore that the whole of education is, as Hamburger maintains, covered by the First Amendment. Even if all that were true, what he is arguing for here would not be freedom of speech, but freedom from speech.

Essentially, he posits that the First Amendment gives one party to a protected communication a veto over the other. By this logic, if parents wanted their children to be taught that two plus two equals five, teachers would be expected to comply. Ironically, moreover, Hamburgers suggestion that public schools are compelling parents to make their children a captive audience for government indoctrination, or at least pressuring them to do so, is belied by the very legal authority that he offers in support of his specious First Amendment claim.

That precedent is Pierce v. Society of Sisters, a 1925 Supreme Court decision. Society of Sisters involved an Oregon law mandating that children attend the states public schools, which would have the effect of shuttering private schools. Hamburger may be right that the Oregon law was motivated by anti-Catholic bigotry. Yet his description of the case is circumscribed in its implication that only religious schools stood to be affected by the law. From that faulty premise, he proceeds to misconstrue the Courts invalidation of the law as granting parents a right to control the content of their childrens education on First Amendment grounds. He then compounds this error by rationalizing that, because the freedom of parents in educating their children belongs to all parents, not only the faithful, the First Amendment liberty the Court must have been relying on is free speech, not free exercise of religion.

Where to begin? Perhaps with the fact that Society of Sisters is not a First Amendment case. Nor was it solely concerned with private schools of a religious orientation.

The Society of Sisters corporation which operated various primary, high school, and junior-college schools was joined by another plaintiff objecting to the states public-school mandate: Hill Military Academy, a nonreligious enterprise (it operated military-training academies for boys age five to 21) that would also have been put out of business by the Oregon law.

The Court invalidated the law not on First Amendment grounds but explicitly on the grounds that these businesses Fourteenth Amendment right to economic liberty, rooted in the protection of property, had been violated.

To be sure, the Court found that the religious and military schools would be impermissibly destroyed because the state was unreasonably interfer[ing in] the liberty of parents and guardians to direct the upbringing and education of children under their control. But the remedy for that, the Court ruled, was that parents could not be compelled to send their children to state-operated public schools. The Court did not come close to implying much less holding that the Constitution empowered parents to control the content of education in public schools.

Indeed, the Court implicitly endorsed the content of public-school curricula: In upholding the private schools right to operate, the Court stressed that Hill Military Academy, just like the public schools, provided courses of study [that] conform to the requirements of the state board of education.

State standards were, of course, different in 1925 than they tend to be today in jurisdictions dominated by progressives. As the Court then observed:

No question is raised concerning the power of the state reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.

Obviously, even though many of our teachers are as exemplary as ever, today we can no longer blithely assume that states will ensure students are instructed in principles of good citizenship, as conveyed by teachers of good character and patriotic disposition. State support for progressives indoctrination agenda precisely entails unleashing willfully left-wing educators to undermine patriotism. Nevertheless, the Constitution and the Bill of Rights did not federalize education, which remains a state responsibility in our federalist system. Society of Sisters affirms that the states have the power to supervise and regulate schools public and private.

That does not render parents helpless. Far from it. If parents find state public schools wanting, Society of Sisters offers them a remedy: They can send their children to the private schools that the Courts ruling safeguarded.

The case simply does not imply that parents have a First Amendment right to control what is taught in public schools. Nor is it clear how such a right would work in practice, since (a) the First Amendment aims to promote even objectionable speech, not suppress it; and (b) not all parents would agree on what should be taught in the public schools, which is why the Courts vouchsafing of a viable alternative to the public schools makes sense.

Constitutional conservatives have too often fallen into the trap of believing the courts will save us from the progressive onslaught even when constitutional counterclaims were strong, as for example were the First Amendment free-speech objections to campaign-finance legislation and the commerce-clause objections to Obamacare. The judiciary is not going to rescue parents from the Lefts abuse of scholastic instruction through means that ought to be anathema to constitutional conservatives regardless: a federal judicial diktat based on an unsupportable reading of free-speech principles.

The First Amendment offers no quick fix here. The only way to solve the problem is through democratic accountability at the local level: Parents, who have the greatest interest in their childrens education, must get themselves elected to school boards and make their voices heard in protest against progressive indoctrination.

Thankfully, that push is already underway.

Link:
The Wrong Way to Fight Progressive Indoctrination in Public Schools - National Review

The immoral doctrine of qualified immunity has so far thwarted my efforts to enforce my First Amendment rights.

Sylvia Gonzalez| Opinion contributor

Qualified immunity: How it protects police from civil lawsuits

The doctrine of qualified immunity has been used to protect police from civil lawsuits and trials. Here's why it was put in place.

Just the FAQs, USA TODAY

Comingfrom alaw enforcementfamily,Ineverhadissues with policein my life noteven atraffic ticket.As thefirst Hispanic woman elected to the City Council of Castle Hills,Texas, and having lived here for 20 years, my campaign issue was fair treatment for everyone,not justthe well-connected.

I was so happy when I won in 2019. Little did I know that soon after,crooked politiciansand their friendswoulduse the power of the government toviolate my constitutional rightsby removing me from office,and even throwing me in jail, becausecity officials didnt like being criticized for doing bad work.

That's not the end of my story, however. Because oftheobscureandimmoral judge-created doctrineof qualified immunity, my efforts to enforce my First and 14th Amendment rights havebeen thwarted by excessive delays.

During my campaign in 2019,Ivisited and spoke with residents inmore than 500 households and listened to their frustrations and complaints about City Manager Ryan Rapelye.

After the election, a few people who were unhappy with the results circulated an online petition supporting Rapelyeandgot about 150 signatures. This upset people who had voted for me, and they began to ask us to circulate a petition to reflect their concerns.

At myfirst council meeting, thepetition was turned intothemayor,whodidn't distribute the petition to the city secretary, as required, so copies could be made for all council members.

Asthe meetingwas about to start,thecityattorneytoldme Iwas nolongeron the councilbecause the sheriff, who had read me my oath at the council meeting, was not qualified to swear me in.

Qualified immunity: Supreme Court just doubled down on flawed qualified immunity rule. Why that matters.

Noonehadvoiced a problem at the time of theswearing-in ceremony, which was attended bythecityattorney, the mayor and theentireCity Council.A previous sheriff had alsosworn in other council members with no issue.

It was clear I was being harassed for doing my job on the council to report on the community's frustrations with the city manager, who was obviously well-connected.

In theJuly-August city newsletter, The Castle Hills Reporter, which is mailed to all residents and businesses in the city, Councilman Skip McCormick wrote an articledescribing how a City Council membercould be removedfrom office. He said they could beconvicted of a crime orby filing ofa lawsuit against the council member,whichsets up a jury trial a blueprint for what ended up happening to me.

With the help of friends, I hired an attorney and filed with the county court to getmyCity Council seat back.On July 18, aneighborcalled early in the morning and told my husband that the sheriff's deputies were about to serve me withan arrest warrant.After turning myself in at the detention center (where I spent the day in handcuffs), I discovered that the crime I was accused of by the mayor was "tampering with governmental record."

Qualified immunity: He was asleep in his car. Police woke him up and created a reason to kill him.

The elaborate setup by cronies of the city manager was all over the news. I did nothing criminal, and the district attorney dismissed the charge that had been brought against me.

I had tospend my own money to locate and hire a criminal defense attorney.Meanwhile, aCastle Hills police officervisited thehomes of the people who had signed the petition.

I dropped the civil case because I couldn't affordit.My attorney sued for compensation of all the money Ihad tospend, and to be paid back for what they put me through. The matter was dismissedSept. 29 by the 4th Court of Appeals.

USA TODAY Opinion Series: Faces, victims, issuesofqualified immunity

The Institute for Justice agreed to file a federal lawsuit against the city of Castle Hills andhad a hearing beforeU.S. District Judge David Alan Ezra. The individual defendantsrequested that thesuit bedismissed on the basis ofqualified immunity, a doctrine that was intended to keep police and other government officials from being punished for reasonable acts while on the job, but which has ended up precluding plaintiffs from money damages to which they are legally entitled.

Judge Ezra denied the individual defendants qualified immunity, allowing my case to move forward. The city appealedthis rulingto the U.S. Court of Appeals in New Orleans, where we will meet Wednesday.

The mayor and his allies broke the law, violated the U.S. Constitution, ignored the people who voted for me and nowpleadqualified immunity to avoidresponsibility.My civil rightsweredeniedbecause I did not receive equal treatment under the lawand my right to freedom of speechwasviolated.I was arrestedand thrown in jailbecause the city officialswho didnt like the criticism against them decided their best move was to silence me.The rightto disagree with the government is the very essence of our democracy, and I was punished for exercising my right to do so.

Despite the extreme stress, I believe it is my dutyto stand upto try toensurethat othersare not silenced the way I was.

Qualified immunity must end. We must striveto hold government accountable, no matter how big or how small, and no matter whose rights have been violated.

Sylvia Gonzalez isa former city councilwoman of Castle Hills, Texas. She was the city's first Hispanic councilwomanandis the daughter of a retired police officer.

This column is part of a series by the USA TODAY Opinion team examining the issue of qualified immunity. The project is made possible in part by a grant fromStand Together. Stand Together does not provide editorial input.

Go here to read the rest:
City officials threw me in jail to silence me. Years later, I'm still seeking justice. - USA TODAY

Good Monday morning.

First in Sunburn Adrian Lukis, the former Chief of Staff to Gov. Ron DeSantis, is joining top lobbying firm Ballard Partners.

Adrians recent experience at the highest levels of Florida state government significantly expands the depth of our firms formidable expertise in the state Capitol, said firm founder and President Brian Ballard.

His long-standing reputation, as well as his unique experience working closely with Gov. DeSantis, the Senate President and the Speaker of the House, will make him an invaluable partner and adviser for our firms clients.

Lukis has been a top adviser to DeSantis since he was a candidate for Governor three years ago. During his tenure in the administration, Lukis managed the Executive Office of the Governor and all executive branch agencies under the Governors leadership.

He was elevated from Deputy to head Chief of Staff in March; however, he didnt plan to stay long-term because of his young family. He left the position in September.

Before rising through the ranks in the Governors Office, Lukis was a high-level staffer to former House Speaker Jos Oliva. He formerly served as Deputy Staff Director in the Florida House of Representatives and as an attorney for the House Economic Affairs Committee.

Lukis is a graduate of Florida State University, where he earned his undergraduate and law degrees. He worked as a corporate and business law attorney before reentering state government.

I am delighted to join Ballard Partners and to be working with the firms unparalleled team in Tallahassee, Lukis said.

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You may not know her name, but you know her if you watch any sports on television.

Florida DraftKings customers received a targeted text/video message from Jessie Make. It. Reign. Coffield on behalf of Florida Education Champions this weekend, with a reminder to return their petition by mail to support their effort to bring competition in sports betting to Florida, with all tax revenues supplementing the Florida Educational Enhancement Trust Fund.

Registered Florida voters can request a personalized petition be mailed to them through many digital portals that connect to an FEC landing page, and as Jessie says, all they have to do is sign, date and return it, postage-paid, to Make It Reign in Florida.

Clever play in leveraging the power of DraftKings national brand and millions upon millions of dollars in television advertising to add extra power to the petition-phase effort. Were told to stay tuned for more to come this week.

To watch the video, click on the image below:

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According to polling released Friday by the Florida Chamber of Commerce, voters believe the state is headed in the right direction and think DeSantis deserves a second term.

The poll, conducted by Cherry Communications, found that 48% of Florida voters think the state is headed in the right direction compared to 42% who said it was on the wrong track.

Men were more likely to adopt the positive outlook, while the inverse was true for women. The Florida Chamber noted that Hispanic voters said the state was headed in the right direction by a 26-point margin, 57%-31%.

Florida is moving in the right direction, and we need to keep the momentum going, Florida Chamber President and CEO Mark Wilson said. As we just recently addressed Floridas future at our Florida Chamber Foundation Annual Meeting and Future of Florida Forum, theres no better time to unite the business community for good to ensure the right things continue to happen.

The six-point advantage for right direction carries over to the Governors race, the poll shows. Regardless of the opponent, DeSantis retains a strong position in his as-yet-unlaunched reelection campaign.

If his foil is Democratic former Governor and U.S. Rep. Charlie Crist, the incumbent would win a second term with a 7% margin. If Agriculture Commissioner Nikki Fried wins the Democratic nomination, the spread grows to 9%.

The Governors showing comes as Florida voters rate jobs and the economy as their top issue it topped the list due to its strong support among men and Republicans. COVID-19 ranks No. 2, with women and Democrats listing it as their top issue.

The Florida Chamber poll was conducted on Oct. 17-25 by Cherry Communications during live telephone interviews of likely voters. The sample size included 246 Democrats, 254 Republicans and 108 independents. It has a margin of error of plus or minus 4%.

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First in Sunburn Vic Torres endorses Annette Taddeo for Governor The Taddeo for Governor campaign released its first wave of endorsements Monday. Democratic Sen. Torres joins former Reps. JC Planas and Cindy Lerner in endorsing Taddeo. Our state has many challenges, and this Governor has put Floridians in harms way, Torres said in a statement Monday. We need a Democratic nominee who will offer the clearest contrast and I know the best candidate to do that is my good friend and colleague, Senator Annette Taddeo. Annette embodies the American dream and has fought against all odds her entire life. Annette has the experience, ethics and leadership to lead our state as Governor and I am proud to endorse her campaign for Governor.

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Spotted at the Governors Mansion Saturday for Halloween festivities with the First Family Secretary Laurel Lee and former Sen. Tom Lee, Secretary Todd Inman and Anne Duncan, Chris Emmanuel, Cody Farrell, Larry Keefe, Stephanie Kopelousos, Alex Kelly, Trey and Tara Price, Christina Pushaw, Chris and Gina Spencer, Meredith Stanfield, Ray Treadwell, Mike Yaworsky, Skyler and Lindsey Zander.

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Public affairs firm RedRock Strategies expanded its Florida footprint with the addition of Greg Ungru and Skylar Swanson.

Both Greg and Skylars dynamic skillsets and dedication to winning are a welcomed addition to the RedRock Florida team, said Kayla Lott, RedRocks Senior Strategist. As we continue to grow in Florida, having Gregs extensive political experience and Skylars digital expertise on the team will help us continue to help our clients and friends be successful.

RedRock Strategies has built a national presence in the public affairs, digital, and political consulting spaces for over two decades by defining what it takes to win. I look forward to working with Skylar and Greg to expand our Florida footprint and help our clients get from where they are, to where they want to be.

Ungru has more than two decades of experience in The Process. The Ohio State University alum and current Florida State University MBA candidate served under four Governors, holding leadership positions in the Florida Department of Elder Affairs and Department of Economic Opportunity as well as Marsys Law for Florida, LeadingAge Florida, the Florida Sports Foundation and the Republican Party of Florida.

Swanson started her career in then-Rep. Keith Perrys legislative office later moved over to the campaign side where she served as Fundraising Director for his 2016 and 2018 Senate campaigns. The FSU alum and current University of Florida graduate student then worked as Communications Director in the House Majority Office, and in 2020 she joined Attorney General Ashley Moodys communications team.

SITUATIONAL AWARENESS

@RonBrownstein: 1 big reminder from Fox Virginia Gov poll: theres no escaping Prez shadow in modern US politics. If Bidens approval really is just 43% w/Virginia voters Tues, itll be long night for (Terry) McAuliffe. If its 43% on 11/22, it will be brutal for Ds. Thats why bolstering (Joe) Biden is their job one.

@WalshFreedom: Its Trumps Party. If you dont support Donald Trump, you have no future in this Republican Party. None. No whining. It is what it is.

@NumbersMuncher: The Lets Go Brandon stuff is stupid, childish nonsense you see among teens trying to speak in code. The Southwest pilot was an idiot for saying it and knew full well what he was doing. Everyone on the right and left on here are losing their minds over the dumbest stuff.

@Deggans: Im wondering about existing school vaccine mandates for mumps, measles, polio. At some point, those were all new drugs, as well. If DeSantis had been Floridas Governor when the polio vaccine was rolled out, would he have opposed children taking that, too?

@ElectProject: Last-minute costume change this year: Im going as an academic exercising their free speech. Very scary to some folks, apparently

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DAYS UNTIL

St. Petersburg Municipal Elections 1; Floridas 20th Congressional District Primary 1; The Blue Angels 75th anniversary show 4; Disneys Eternals premieres 4; Yellowstone Season 4 begins 5; Disney Very Merriest After Hours will debut 7; U.S. to lift restrictions for fully vaccinated international travelers 7; Miami at FSU 10; Hawkeye premieres 13; Special Session on vaccine mandates begins 14; ExcelinEd National Summit on Education begins 17; FSU vs. UF 26; Florida Chamber 2021 Annual Insurance Summit begins 30; Jacksonville special election to fill seat vacated by Tommy Hazouris death 36; Steven Spielbergs West Side Story premieres 39; Spider-Man: No Way Home premieres 46; The Matrix: Resurrections released 51; The Book of Boba Fett premieres on Disney+ 58; CES 2022 begins 65; NFL season ends 69; 2022 Legislative Session starts 71; Floridas 20th Congressional District Election 71; Special Elections in Senate District 33, House District 88 & 94 71; Florida TaxWatchs 2022 State of the Taxpayer Day 72; Joel Coens The Tragedy of Macbeth on Apple TV+ 74; NFL playoffs begin 75; XXIV Olympic Winter Games begins 95; Super Bowl LVI 104; Daytona 500 111; St. Pete Grand Prix 118; The Batman premieres 124; Doctor Strange in the Multiverse of Madness premieres 187; Top Gun: Maverick premieres 207; Platinum Jubilee for Queen Elizabeth II 213; Thor: Love and Thunder premieres 249; San Diego Comic-Con 2022 261; Spider-Man: Into the Spider-Verse sequel premieres 340; The Flash premieres 368; Black Panther 2 premieres 375; Avatar 2 premieres 410; Captain Marvel 2 premieres 473; Ant-Man and the Wasp: Quantumania premieres 627. Dune: Part Two premieres 718.

TOP STORY

Florida bars state professors from testifying in voting rights case via Michael Wines of The New York Times Three University of Florida professors have been barred from assisting plaintiffs in a lawsuit to overturn the states new law restricting voting rights, lawyers said in a federal court filing. The ban is an extraordinary limit on speech that raises questions of academic freedom and First Amendment rights. University officials told the three that because the school was a state institution, participating in a lawsuit against the state is adverse to UFs interests and could not be permitted. In their filing, the lawyers sought to question DeSantis on whether he was involved in the decision. The universitys refusal to allow the professors to testify was a marked turnabout for the University of Florida. A spokeswoman for the university, Hessy Fernandez, defended the prohibitions, saying: The university did not deny the First Amendment rights or academic freedom of the professors. Rather, the university denied requests of these full-time employees to undertake outside paid work that is adverse to the universitys interests as a state of Florida institution.

UF professors could testify in voting rights case if they are unpaid, spokeswoman says via Danielle Ivanov of The Gainesville Sun To be clear, Fernandez stated, if the professors wish to do so pro bono on their own time without using university resources, they would be free to do so. That allowance for unpaid work was not mentioned earlier when Gary Wimsett, UFs assistant vice president for conflicts of interest, told two of the professors that UF will deny its employees requests to engage in outside activities when it determines the activities are adverse to its interests. Wimsetts statement does reflect a view the UF President Kent Fuchs expressed at a September Faculty Senate meeting. Fuchs reminded the group that the state government has authority over almost all areas of the universitys operation.

Nikki Fried decries UF repression of First Amendment rights DeSantis has again and again shown his willingness to politicize the school we love and use it to drive his own agenda even if that means silencing faculty who are standing up for Floridians right to express themselves freely, the Agriculture Commissioner and candidate for Governor said in a statement. We deserve leaders who respect our Constitution, who understand the First Amendment, and who will uphold our institutions not tear them down in a misguided and desperate attempt to hold on to power. Florida has seen these types of discriminatory laws to restrict voting rights before. They were wrong then, and theyre wrong today. Gator Nation knows what it takes to stand up and fight.

Debbie Wasserman Schultz calls for UF reversal on professor testimony denial UFs decision to prevent its professors from speaking out in court against a state law that suppresses minority voting rights is appalling, Wasserman Schultz said in a statement. We must speak out and renounce it. If allowed to stand, the restraint of these professors speech will undermine every UF claim to honor academic independence and free speech. It will damage UFs ability to recruit and retain top faculty and stifle fundraising. UF will stand out in anti-academic exile, rather than an exemplar of higher learning. My hope is that President Kent Fuchs swiftly reverses this egregious action.

STATEWIDE

In addressing Florida business leaders, Ron DeSantis takes on corporate wokeness via Mary Ellen Klas of the Miami Herald After months of getting the cold shoulder from large corporations who refused to endorse his COVID-19 policies, DeSantis had harsh things to say at the annual meeting of the Florida Chamber of Commerce, blasting what he called the rise of corporate wokeness. If youre using your power as a corporation, and youre leveraging that to try to advance any ideology, I think its very dangerous for this country and Im not just gonna sit idly by, DeSantis warned as he presented the keynote speech to the audience at the Hyatt Regency Grand Cypress resort in Orlando. In the rambling 30-minute speech, DeSantis warned the business audience that he has no tolerance for corporations that use their influence for political messaging.

DeSantis: Uproar over Surgeon General nominee is manufactured via Christine Jordan Sexton of Florida Politics DeSantis told a national cable television audience that uproar over his appointed Surgeon General was manufactured and that he had no plans to withdraw the nomination of Dr. Joseph Ladapo. On Thursday, DeSantis recorded an interview with Fox News personality Laura Ingraham, but part of it did not air until late Friday. The Governor was asked about Sen. Tina Polsky and her decision to ask Ladapo to leave her office because he refused to wear a mask even after she told him she had a serious medical condition. Polsky was diagnosed with breast cancer and this week began radiation treatment. Ladapo, who was appointed to his post in late September, later released a statement saying he refused to wear a mask because he cannot communicate clearly or effectively with a mask.

Floridas legacy of slow-rolling parole keeps thousands of people behind bars some, for decades past their eligibility date via Justin Garcia of Scalawag magazine According to the Florida Commission on Offender Review (FCOR), the agency that administers parole, from 2015 to 2020, only 152 parole-eligible people out of 6,851 considered cases were granted parole, or less than 2% of the cases reviewed. Of those, just 86 people paroled were serving time for murder or attempted murder. The commissions 2020 Annual Report said there were 3,959 incarcerated people who were eligible for parole that year, and 424 releasees actively on parole supervision. Between October 2019 and September 2020, the commission made 1,419 parole determinations and granted parole to 41 incarcerated people about 1% of parole-eligible prisoners in Florida. Floridas numbers are staggeringly low compared with the parole boards of neighboring Southern states, too.

DATELINE TALLY

Coming soon to Tallahassee: The DeSantis anti-vaccine show via Steve Bousquet of the South Florida Sun-Sentinel DeSantis is obviously running for something, because he called a special session the week of Nov. 15 to give employees greater protection against vaccine mandates as ordered by Biden. Republican lawmakers, relegated to extras in DeSantis latest one-man show, will comply, of course. They dont have a choice. The Governor also wants to tighten the so-called parents bill of rights, the new law used to attack school board mask mandates in Broward, Miami-Dade and elsewhere. You notice that major societal problems that directly affect people seldom warrant Special Sessions.

To watch DeSantis vow (via Twitter) on vaccine mandates, click on the image below:

DeSantis calls Special Session on COVID-19 vaccine mandates, backs off on business liability via Gray Rohrer of the Orlando Sentinel DeSantis formally called a Special Session to address COVID-19 vaccine mandates on employees by businesses and local governments, ordering the Legislature to convene from Nov. 15 to Nov. 19. But DeSantis backed off from stripping COVID-19 liability protections from businesses that impose vaccine mandates on their workers. A DeSantis spokeswoman said the ultimate goal is to prevent businesses from firing workers who opt against getting vaccinated, and there will be other enforcement mechanisms to dissuade companies from requiring vaccines in the first place.

Lawmakers, officials resist testifying about election law via John Haughey of The Center Square On May 6, DeSantis signed a hotly-contested elections bill into law. DeSantis signed Senate Bill 90, adopted a week earlier by state lawmakers in a partisan vote, during a rally sponsored by Club 45 USA, a Trump fan club, and covered live as an exclusive on Fox & Friends. Me signing this bill says: Florida, your vote counts, your vote is going to be cast with integrity and transparency, and this is a great place for democracy, DeSantis said, acknowledging, again, that Floridas 2020 election was the nations gold standard in electoral professionalism and security. Much has changed since, including, going on record to discuss how the legally-embattled SB 90 was crafted and adopted despite overwhelming citizen opposition.

Happening today House Minority Co-leader Evan Jenne will hold a virtual news conference, 10 a.m., Zoom link here. The event will be livestreamed on The Florida Channel.

Happening today House Democrats will host a virtual news conference to discuss the redistricting process: Jenne and Reps. Joe Geller, Kelly Skidmore and Dan Daley, 1 p.m. Zoom link here.

Happening today The House Public Integrity and Elections Committee meets to discuss draft definitions regarding the 2018 constitutional amendment making changes to lobbying, 4 p.m., 404 House Office Building.

For your radar With Florida facing a historic shortage of health care workers, leaders from a diverse set of affected organizations have come together under the banner of the Health Care Workforce Coalition, and today at 10:30 a.m. will hold a roundtable discussion at the Florida Health Care Association Education and Training Center that promises not just a description of the problem but also some solutions. Everyone from nursing homes, assisted living facilities and hospitals to veterans services and home health care organizations are struggling to hire enough nurses, nursing assistants, and other professionals. The workforce shortage is affecting their ability to meet the needs of Floridians amid COVID-19 and the states growing elderly population, and theyre looking to the Legislature to help address the challenges they face. The roundtable discussion will take place at the Florida Health Care Association headquarters, the states largest association of long-term care facilities.

Advocates question education requirements in proposed personal care attendant rule via Christine Jordan Sexton of Florida Politics State health officials were given a list of concerns relating to a new proposed rule that would allow unlicensed staff called personal care attendants to work in nursing homes as the industry struggles to find the workers it needs to care for residents. Florida Long-Term Care Ombudsman Program legal advocate Lynne Hearn told Agency for Health Care Administration officials the proposed rule they published didnt meet the requirements of the 2021 law because it doesnt require personal care attendants to complete 16 hours of classroom education. Instead, the proposed rule requires 10 hours of classroom teaching and six hours of supervised simulation, where the candidate must exhibit competency in all areas of training.

New and renewed lobbying registrations:

Oscar Anderson, Tasi Hogan, The Southern Group: Second Harvest Food Bank of Central Florida

Matt Bryan, David Daniel, Thomas Griffin, Jeff Hartley, Lisa Hurley, Jim Naff, Teye Reeves, Smith Bryan & Myers: GLP FLA

Emily Buckley, Dean Mead: Florida Ambulance Association

Chris Chaney, The Advocacy Group at Cardenas Partners: Gigly

Carlecia Collins, GrayRobinson: Conservation Florida

Candice Ericks, Ericks Consultants: FLITE Center, Intero Group HIM Services

Matthew Herndon, RSA Consulting Group: David A. Straz, Jr. Center for the Performing Arts, Miracles Outreach, Tampa Bay Partnership, Tampa Theatre

Scott Jenkins, Delegal Aubuchon Consulting: New York Life Insurance Company

Timothy Keck: Mission Health Communities

Jennifer Kelly, Foley & Lardner: ACT Environmental & Infrastructure

Travis Moore, Moore Relations: ONR App

CORONA FLORIDA

DeSantis cant figure out who made COVID-19 all political via Philip Bump of The Washington Post Nearly 1.2 million residents of the Sunshine State contracted the coronavirus over those three months, nearly a third of the total the state has seen since the pandemic began in February 2020. More than 13,000 Floridians died as the virus whipped across the state, more than 17% of the deaths the country saw during that period despite Florida having only 6.5% of the countrys population. And for DeSantis, that somehow means that its time to boast about what a good job the state has done. Throughout the pandemic, Floridas case rates have been worse than the countrys 57% of the time.

Florida posts lowest rate of COVID-19 cases per capita in nation via Scott Powers of Florida Politics Florida recorded just 12,151 new COVID-19 cases in the past week. By federal counts, which are slightly different from Floridas tabulations but still in the same ballpark, the Sunshine States most recent tally of newly-confirmed cases now gives Florida the lowest per capita rate of new cases in the country. Floridas 12,115 seven-day case tally in the federal report works out to a rate of 56 new COVID-19 cases per 100,000 residents, better than all the other 49 states. The CDC data covers a week that is one day behind the week that the Florida Department of Health reports in its Friday announcements. However, the federal data, which covers the week through Wednesday, can be used to compare states, as the CDC complies like data from all states.

Florida COVID-19 update: 1,711 cases added to tally, hospital patients continue decreasing via Devoun Cetoute of the Miami Herald

South Florida has now administered 1.25M vaccine doses as COVID-19 cases continue to fall via Ryan Nicol of Florida Politics South Floridas tri-county area has hit another benchmark in vaccine distribution, surpassing 1.25 million doses administered. Miami-Dade County has put nearly 672,000 shots in arms since vaccines became available. That number is nearly 357,000 in Broward County and around 225,000 in Palm Beach County. The number of doses administered rose 12% week-to-week in Palm Beach County and 2% in Miami-Dade. Browards number fell 4% week-to-week. That vaccine push has seen 94% of Miami-Dades population get at least one shot. Broward County has administered at least one shot to 83% of its eligible population, and Palm Beach sits at a 75% vaccination rate.

Miami-Dades COVID-19 vaccination rate is very high. Heres why you might be skeptical via Daniel Chang and Ana Claudia Chacin of the Miami Herald No Florida county is as well-protected against COVID-19 as Miami-Dade, where 94% of residents 12 and older had received at least one dose of vaccine as of Oct. 28. At least thats the percentage the state health department tells the public. As of Friday, 24 Miami-Dade ZIP codes logged a mathematically impossible vaccination rate of greater than 100% of eligible residents who have received at least one dose. Florida gathers and shares the data to help guide pandemic response planning, a purpose for which some local officials say the information is useless. There are 24 Miami-Dade ZIP codes where the share of eligible residents who have received at least one dose reportedly exceeds 100%.

In Miami-Dade, predominantly Black and low-income ZIP codes are still behind on vaccination via Ana Claudia Chacin and Daniel Chang of the Miami Herald Despite flaws in the Florida Department of Healths reporting of vaccination rates for each of the 80 ZIP codes in Miami-Dade, an analysis of the data reveals trends that suggest areas with predominantly Black and low-income residents are falling behind on vaccination against COVID-19. In the nine Miami-Dade ZIP codes where more than half of residents describe themselves as non-Hispanic Black, the average vaccination rate was just 48% of the population as of Friday. Only one of the nine ZIP codes had more than 50% of their population fully vaccinated.

Jon Bon Jovi cancels Miami Beach concert after testing positive for COVID-19 via Samantha J. Gross of the Miami Herald

Its a personal choice: DoD civilians, contractors protest COVID-19 vaccine mandate via Jim Thompson of the Northwest Florida Daily News A mix of local Department of Defense civilian workers and military contractor employees spent hours Thursday morning along Eglin Parkway protesting federal mandates that require them to be vaccinated against COVID-19 or have an approved exemption. At midmorning Thursday, about two dozen people stood between Gardner Drive and Cherokee Road in Shalimar waving signs with slogans opposing the mandates. Several participants revealed frustration with what they see as bureaucratic bungling surrounding the mandates, particularly with regard to basic communication from the DoD and employers on deadlines for vaccination and the processing of requests for exemptions on the allowable spiritual or health grounds.

Duval Schools lifts its mask requirement as COVID-19 rates dip in Jacksonville via Emily Bloch of The Florida Times-Union Starting Monday, students attending Duval County Public Schools and employees will no longer be required to wear masks on campus. Thats because the citys COVID-19 positivity rate has finally dipped low enough to categorize Duval Countys transmission status as moderate instead of substantial or high. Dr. Sunil Joshi, President of the Duval County Medical Society Foundation, said he wouldve preferred to see the districts mask policy stay in place until community spread decreased even further. Duval Countys positivity percentage dipped weeks ago, but the average number of new cases took longer to achieve.

With masks optional at most Florida schools, some students with disabilities feel cast aside via Leslie Postal of the Orlando Sentinel JJ Holmes, who has cerebral palsy, cannot both wear a face mask and use his communication device. Because COVID-19 poses heightened risks to his health, his doctor said everyone around him at school should wear a mask to keep him safe while he uses his iPad in class, according to his mother, Alison Holmes. But Seminole schools do not require masks, so the 11th grader has not been at Lake Mary High School this year. He and his mother argue the Seminole school district is violating federal law by refusing to require masks, as some districts did when COVID-19 cases surged in August. Falling COVID-19 caseloads give his mother hope JJ might be able to return to campus in January. But another surge in cases, which experts say is possible, could alter their plans.

TUES ELECTIONS

11 Democrats on ballot to replace late US Rep. Hastings via Brendan Farrington of The Associated Press Some candidates running to replace Hastings are saying its a once-in-a-lifetime opportunity to represent the diverse South Florida district. In this case, thats hardly an exaggeration. Eleven Democrats are on the ballot in Tuesdays Primary Special Election, including state Rep. Omari Hardy, who was 3 years old when Hastings was elected in 1992. Hastings was the longest-serving member of Floridas congressional delegation before he died in April after suffering from pancreatic cancer. Turnout is expected to be low on Tuesday, and its conceivable the next U.S. House member to represent the district can win the primary with 10% of the vote.

EMILYs List endorses Barbara Sharief in CD 20 Special Election via Ryan Nicol of Florida Politics

Miami Mayor seeks second term as he raises national profile via Adriana Gomez Licon of ABC News 10 Miami Mayor Francis Suarez is hoping to easily secure a second term Tuesday, with his reelection campaign showing he can raise millions as he seeks to elevate his profile at a national level. Suarez gained name recognition for launching an effort to lure technology investors to the city at the beginning of the year. Analysts say Suarez was astute to seize a moment when some investors were looking to move to South Florida for tax reasons and looser COVID-19 restrictions during the pandemic. The Mayor has been more than willing to assist. In December, when someone tweeted about moving Silicon Valley to Miami, Suarez replied, How can I help? The effect his tech push has had on migration and job creation is still unclear as census numbers do not yet include data for 2021.

Eight candidates, some very familiar to voters, vie for two Miami Beach Commission seats via Jesse Scheckner of Florida Politics

Proposed 2 a.m. liquor ban will damage Miami Beach economy for years to come via Hank Fishkind of the Miami Herald The city of Fort Lauderdale, some 40 years ago, decided it wanted to do away with being a Spring Break destination, raising many of the same concerns that Miami Beach officials have when they talk about wanting to shut the Party down in their city. Fort Lauderdale successfully erased its name off the lists of top Spring Break destinations, but they also invited localized economic depression for 25 years. Eventually, the beach was redeveloped, but it took over decades for the economy to spring back. Miami Beach is inching toward the same fate. The 2 a.m. alcohol ban is a bad idea at an even worse time. We are in the midst of a very fragile economic recovery from the pandemic. An alcohol ban will undoubtedly have a devastating impact on the hospitality industry.

Miami Beach group opposing 2 a.m. alcohol rollback debuts ad highlighting leaked Mayor call via Jesse Scheckner of Florida Politics

Orlando City Commissioner Robert Stuart faces tough challenge from Nicolette Springer via Scott Powers of Florida Politics

Orlando City Commissioners trying to keep the band together via Scott Powers of Florida Politics

Read the original here:
Sunburn The morning read of what's hot in Florida politics 11.1.21 - Florida Politics

He has erected a multitude of new offices, and sent hither swarms of officers to harass our people and eat out their substance. Declaration of Independence

Halloween is a time when one would expect to see scary creatures, eerie happenings and strange occurrences in the movies, on TV and around the neighborhood. This year, however, the spookiest things are emitting from the government and thats not making for a happy Halloween. Through out the ages, it has been governments that have killed more people than wars, diseases and natural disasters.

The above quote from the Declaration of Independence was referring to King George III, who was King of Great Britain and whose policies led to our Revolutionary War. Those words could apply to the current president, President Joe Biden, as well as a multitude of state governors and city mayors of both parties and judges practicing judicial legislating.

President Biden is requesting a couple of hundred new IRS agents. Governors, state and local health officials have created unconstitutional mandates that restrict first amendment rights to assemble and exercise religion. They are now attempting to require such oppressive, despotic rules that demand that people get vaccinated against their own wishes. They are attempting to do this now through fear, but if the government starts to punish individuals, either directly or indirectly, via employers threats of firing, they will effectively weaponize the government against its very own citizens.

When the US Attorney General, Merrick The Ferret Garland, threatens to sic the FBI to investigate parents for domestic terrorism when they express their disapproval of school boards decisions to teach divisive and idiot theories, this is weaponizing government against its citizenry.

When left wing prosecutors use a grand jury to get indictments against police officers in use of force cases, something is wrong. Those familiar with the criminal justice system, know that these prosecutors are weaponizing their power to dampen proactive police work. Many consider a grand jury indictment to be prosecutorial misconduct or laziness because, in many jurisdictions, it avoids a preliminary hearing, where defense attorneys can take part. Police officers will be afraid to make arrests if they fear getting indicted every time they have to use force to overcome resistance.

A woman was denied a life saving kidney transplant operation because she and the donor she found wouldnt get vaccinated, for logical and medical reasons. The woman said that she would be tested but was afraid that the vaccination would counter act some of the medication she was already taking. The donor had already had COVID and had more anti-bodies than if she had been vaccinated and therefore saw no need to get vaccinated. The Colorado hospital that refused to perform the operation on the unvaccinated patient and donor, cited the governments mandate for refusing to operate. Weaponizing this kind of mandate can kill people.

The Coronavirus has been the major excuse for the government to weaponize its bureaucracy against our countrys citizens. Many small businesses, bars, restaurants, and gyms have been closed, never to reopen. Hundreds of thousands, if not millions of those business owners and employees have lost their careers. A country whose government weaponizes its resources against its own people, is not a free country. Could our enemies have done better job of ruining a once great nation?

Originally posted here:
Opinion: Weaponizing Government Against Its Citizens - Prescott eNews

NYC Mayor Bill de Blasio (Getty Images, iStock)

A federal appeals court has ruled in favor of two small landlords who sued New York City in July over a package of hastily passed protections for retail tenants.

The legislation at the heart of the case was signed by Mayor Bill de Blasio in May 2020 to shield certain retail tenants from their rent-seeking landlords. One temporarily bars landlords from going after the personal assets of restaurant and store owners who owe rent. Another forbids pressuring tenants affected by Covid.

The lawsuit alleged that the legislation denies landlords First Amendment rights and violates the Contract Clause of the Constitution, as well as some laws.

The appellate judges ruled that while the bills do not violate First and 14th amendment rights, there is a plausible Contracts Clause challenge to the Guaranty Law. Under the legislation, landlords cannot enforce personal liability clauses in leases abandoned by some tenants. Such terms, common in commercial lease agreements, allow landlords to pursue the personal assets of tenants whose businesses owe rent.

The legislation was introduced by Manhattan Democrat Carlina Rivera, prompting immediate questions about its constitutionality. Several City Council members voted no, saying the government could not interfere with private contracts.

But for small businesses and their trade groups, such as the New York City Hospitality Alliance, the legislation was cause for celebration. The laws attempted to limit the protection to smaller businesses.

The de Blasio administration defended the law and won the first round in December, when U.S. District Judge Ronnie Abrams ruled the laws constitutional.

Abrams wrote that because landlords could still demand rent, their First Amendment rights were intact. There was no contract clause violation, she ruled, because the law was reasonable, necessary, and passed to advance a legitimate public interest.

The plaintiffs were Marcia Melendez and Ling Yang, first-generation immigrants who because of non-paying commercial tenants were struggling to make their mortgage payments.

Contact Sasha Jones

Link:
Court reverses NYC law protecting non-paying businesses - The Real Deal

Face recognition technology is a special menace to privacy, racial justice, free expression, and information security. Our faces are unique identifiers, and most of us expose them everywhere we go. And unlike our passwords and identification numbers, we cant get a new face. So, governments and businesses, often working in partnership, are increasingly using our faces to track our whereabouts, activities, and associations.

Fortunately, people around the world are fighting back. A growing number of communities have banned government use of face recognition. As to business use, many communities are looking to a watershed Illinois statute, which requires businesses to get opt-in consent before extracting a persons faceprint. EFF is proud to support laws like these.

Lets begin with the ways that face recognition harms us. Then well turn to solutions.

Face recognition violates ourhumanrighttoprivacy. Surveillance camera networks have flooded our public spaces. Face recognition technologies are more powerful by the day. Taken together, these systems can quickly, cheaply, and easily ascertain where weve been, who weve been with, and what weve been doing. All based on a unique marker that we cannot change or hide: our own faces.

In the words of a federal appeals court ruling in 2019, in a case brought against Facebook for taking faceprints from its users without their consent:

Once a face template of an individual is created, Facebook can use it to identify that individual in any of the other hundreds of millions of photos uploaded to Facebook each day, as well as determine when the individual was present at a specific location. Facebook can also identify the individuals Facebook friends or acquaintances who are present in the photo. [I]t seems likely that a face-mapped individual could be identified from a surveillance photo taken on the streets or in an office building.

Government use of face recognition also raises Fourth Amendment concerns. In recent years, the U.S. Supreme Court has repeatedly placed limits on invasive government uses of cutting-edge surveillance technologies. This includes police use of GPS devices and cell site location information to track our movements. Face surveillance can likewise track our movements.

Face recognition also has an unfair disparate impact against people of color.

Its use has led to the wrongful arrests of at least three Black men. Their names are Michael Oliver, Nijeer Parks, and Robert Williams. Every arrest of a Black person carries the risk of excessive or even deadly police force. So, face recognition is a threat to Black lives. This technology also caused a public skating rink to erroneously expel a Black patron. Her name is Lamya Robinson. So, face recognition is also a threat to equal opportunity in places of public accommodation.

These cases of mistaken identity are not anomalies. Many studies have shown that face recognition technology is more likely to misidentify people of color than white people. A leader in this research is Joy Buolamwini.

Even if face recognition technology was always accurate, or at least equally inaccurate across racial groups, it would still have an unfair racially disparate impact. Surveillance cameras are over-deployed in minority neighborhoods, so people of color will be more likely than others to be subjected to faceprinting. Also, history shows that police often aim surveillance technologies at racial justice advocates.

Face recognition is just the latest chapter of what Alvaro Bedoya calls the color of surveillance. This technology harkens back to lantern laws, which required people of color to carry candle lanterns while walking the streets after dark, so police could better see their faces and monitor their movements.

In addition, face recognition chills and deters our freedom of expression.

The First Amendment protects the right to confidentiality when we engage in many kinds of expressive activity. These include anonymous speech, private conversations, confidential receipt of unpopular ideas,gathering news from undisclosed sources, and confidential membership in expressive associations. All of these expressive activities depend on freedom from surveillance because many participants fear retaliation from police, employers, and neighbors. Research confirms that surveillance deters speech.

Yet, in the past two years, law enforcement agencies across the country have used face recognition to identify protesters for Black lives. These include theU.S. Park Police, theU.S. Postal Inspection Service, and local police inBoca Raton,Broward County,Fort Lauderdale,Miami,New York City, andPittsburgh. This shows, again, the color of surveillance.

Police might also use face recognition to identify the whistleblower who walked into a newspaper office, or the reader who walked into a dissident bookstore, or the employee who walked into a union headquarters, or the distributor of an anonymous leaflet. The proliferation of face surveillance can deter all of these First Amendment-protected activities.

Finally, face recognition threatens our information security.

Data thieves regularlysteal vasttrovesof personal data. These include faceprints. For example, the faceprints of 184,000 travellers were stolen from a vendor of U.S. Customs and Border Protection.

Criminals and foreign governments can use stolen faceprints to break into secured accounts that the owners face can unlock. Indeed, a team of security researchers did this with3D modelsbased on Facebook photos.

To sum up: face recognition is a threat to privacy, racial justice, free expression, and information security. However, before moving on to solutions, lets pause to describe the various types of face recognition.

Two are most familiar. Face identification compares the faceprint of an unknown person to a set of faceprints of known people. For example, police may attempt to identify an unknown suspect by comparing their faceprint to those in a mugshot database.

Face verification compares the faceprint of a person seeking access, to the faceprints of people authorized for such access. This can be a minimally concerning use of the technology. For example, many people use face verification to unlock their phones.

Theres much more to face recognition. For example, face clustering, tracking, and analysis do not necessarily involve face identification or verification.

Face clustering compares all faceprints in a collection of images to one another, to group the images containing a particular person. For example, police might create a multi-photo array of an unidentified protester, then manually identify them with a mugshot book.

Face tracking follows the movements of a particular person through a physical space covered by surveillance cameras. For example, police might follow an unidentified protester from a rally to their home or car, then identify them with an address or license plate database.

Face analysis purports to learn something about a person, like their race or emotional state, by scrutinizing their face. Such analysis will often be wrong, as the meaning of a facial characteristic is often a social construct. For example, it will misgender people who are transgender or nonbinary. If it works, it may be used for racial profiling. For example, a Chinese company claims it works as a Uighur alarm. Finally, automated screening to determine whether a person is supposedly angry or deceptive can cause police to escalate their use of force, or expand the duration and scope of a detention.

Legislators must address all forms of face recognition: not just identification and verification, but also clustering, tracking, and analysis.

EFF supports a ban on government use of face recognition. The technology is so destructive that government must not use it at all.

EFF has supported successful advocacy campaigns across the country. Many local communities have banned government use of face recognition, from Boston to San Francisco. The State of California placed a three-year moratorium on police use of face recognition with body cameras. Some businesses have stopped selling face recognition to police.

We also support a bill to end federal use of face recognition. If you want to help stop government use of face recognition in your community, check out EFFs About Face toolkit.

Corporate use of face recognition also harms privacy, racial justice, free expression, and information security.

Part of the problem is at brick-and-mortar stores. Some use face identification to detect potential shoplifters. This often relies on error-prone, racially biased criminal justice data. Other stores use it to identify banned patrons. But this can misidentify innocent patrons, especially if they are people of color, as happened to Lamya Robinson at a roller rink. Still, other stores use face identification, tracking, and analysis to serve customers targeted ads or track their behavior over time. This is part of the larger problem of surveillance-based advertising, which harms all of our privacy.

There are many other kinds of threatening corporate uses of face recognition. For example, some companies use it to scrutinize their employees. This is just one of many high-tech ways that bosses spy on workers. Other companies, like Clearview AI, use face recognition to help police identify people of interest, including BLM protesters. Such corporate-government surveillance partnerships are a growing threat.

Of all the laws now on the books, one has done the most to protect us from corporate use of face recognition: the Illinois Biometric Information Privacy Act, or BIPA.

At its core, BIPA does three things:

EFF has long worked to enact more BIPA-type laws, including in Congress and the states. We regularly advocate in Illinois to protect BIPA from legislative backsliding. We have also filed amicus briefs in a federal appellate court and the Illinois Supreme Court to ensure that everyone who has suffered a violation of their BIPA rights can have their day in court.

BIPA prevents one of the worst corporate uses of face recognition: dragnet faceprinting of the public at large. Some companies do this to all people entering a store, or all people appearing in photos on social media. This practice violates BIPA because some of these people have not previously consented to faceprinting.

People have filed many BIPA lawsuits against companies that took their faceprints without their consent. Facebook settled one case, arising from their tag suggestions feature, for $650 million.

Other BIPA lawsuits have been filed against Clearview AI. This is the company that extracted faceprints from ten billion photographs, and uses these faceprints to help police identify suspects. The company does not seek consent for its faceprinting. So Clearview now faces a BIPA lawsuit in Illinois state court, brought by the ACLU, and several similar suits in federal court.

In both venues, Clearview asserts a First Amendment defense. EFF disagrees and filed amicus briefs saying so. Our reasoning proceeds in three steps.

First, Clearviews faceprinting enjoys at least some First Amendment protection. It collects information about a faces measurements, and creates information in the form of a unique mathematical representation. The First Amendment protects the collection and creation of information because these often are necessary predicates to free expression. For example, the U.S. Supreme Court has ruled that the First Amendment protects reading books, gathering news, creating video games, and even purchasing ink by the barrel. Likewise, appellate courts protect the right to record on-duty police.

First Amendment protection of faceprinting is not diminished by its use of computer code, because code is speech. To paraphrase one court: just as musicians can communicate among themselves with a musical score, computer programmers can communicate among themselves with computer code.

Second, Clearviews faceprinting does not enjoy the strongest forms of First Amendment protection, such as strict scrutiny. Rather, it enjoys just intermediate scrutiny. This is because it does not address a matter of public concern. The Supreme Court has emphasized this factor in many contexts, including wiretapping, defamation, and emotional distress. Likewise, lower courts have held that common law claims of information privacynamely, intrusion on seclusion and publication of private factsdo not violate the First Amendment if the information at issue was not a matter of public concern.

Intermediate review also applies to Clearviews faceprinting because its interests are solely economic. The Supreme Court has long held that commercial speech, meaning expression related solely to the economic interests of the speaker and its audience, receives lesser protection. Thus, when laws that protect consumer data privacy face First Amendment challenge, lower courts apply intermediate judicial review under the commercial speech doctrine.

To pass this test, a law must advance a substantial interest, and there must be a close fit between this interest and what the law requires.

Third, the application of BIPA to Clearviews faceprinting passes this intermediate test. As discussed earlier, the State of Illinois has strong interests in preventing the harms caused by faceprinting to privacy, racial justice, free expression, and information security. Also, there is a close fit from these interests to the safeguard that Illinois requires: opt-in consent to collect a faceprint. In the words of the Supreme Court, data privacy requires the individuals control of information concerning [their] person.

Some business groups have contested the close fit between BIPAs means and ends by suggesting Illinois could achieve its goals, with less burden on business, by requiring just an opportunity for people to opt-out. But defaults matter. Opt-out is not an adequate substitute for opt-in. Many people wont know a business collected their faceprint, let alone know how to opt-out. Other people will be deterred by the confusing and time-consuming opt-out process. This problem is worse than it needs to be because many companies deploy dark patterns, meaning user experience designs that manipulate users into giving their so-called agreement to data processing.

Thus, numerous federal appellate and trial courts have upheld consumer data privacy laws that are similar to BIPA against First Amendment challenge. Just this past August, an Illinois judge rejected Clearviews First Amendment defense.

In the hands of government and business alike, face recognition technology is a growing menace to our digital rights. But the future is unwritten. EFF is proud of its contributions to the movement to resist abuse of these technologies. Please join us in demanding a ban on government use of face recognition, and laws like Illinois BIPA to limit private use. Together, we can end this threat.

See the rest here:
Resisting the Menace of Face Recognition - EFF

Kristine Roegner| Guest columnist

Video: Columbus Dispatch panel discusses critical race theory

On Tuesday, The Dispatch held a live discussion on what Critical Race Theory is, its role in schools and recent moves against similar teachings.

The Columbus Dispatch

As parents and American citizens, we have the First Amendment right to assemble, speak freely and petition our government, including local school boards, on any topic.

More: Here are all the bills impacting the LGBTQ community in Ohio

Whether seeking relief from universal mask mandates, opposing critical race theory indoctrination or addressing other issues affecting our childrens education,parents should feel confident in their constitutional right to speak their opinions.

More: Bill to ban mask mandates in Ohio schools unlikely to pass

Sadly, the National School Boards Association, without approval from any state boards of education, recently petitioned the federal governments law enforcement agencies, including the Department of Justice and FBI, to abridge these constitutional rights.

The Sept. 29 National School Boards Association letterrelies on selective and biased media reporting rather than actual indictments or convictions to request that federal law enforcement deal with what they claim to be growing threats of violence and acts of intimidation occurring across this nation."

More: 'Terrorism and hate crimes': School boards say death threats, unruly meetings require FBI

The national association suggests these acts, which they describe as domestic terrorism," provide justification to employ the Patriot Act against parents who are exercising their First Amendment rights.

More: Threats against Worthington school board over critical race theory part of campaign against democracy

The lack of any direct evidence of threats or harassment by parents when addressing school boards is a clear sign that this has nothing to do with domestic terrorism.

Rather, the left is attempting to further divide this country by launching a cultural war and using intimidation to silencethose who do not agree with their liberal agenda.

Within five days of receiving the National School Boards Association letter, the Biden administration's attorney general, Merrick Garland, directed the FBI to work with U.S. attorneys and meet with federal, stateand local leaders to facilitate the discussion of strategies for addressing threats against school administrators, board members, teachers and staff and open dedicated lines of communication for threat reporting, assessment and response."

More: 'We did not sic the FBI on parents': Attorney General Merrick Garland defends school memo

It is the foundation and core value of our representative government that parents enjoy their constitutional right to speak before and petition their boards of education to shape their desired school curriculums.

Parents can effect change primarily in two ways: electing school board members who represent their core values and exercising their First Amendment right to freely address their local school boards.

More: Distrust, disinformation, dark money: Who's trying to sway Worthington school board race?

It is disturbing that the attorney general is attempting to assert federal authority over a local school board matter, which has no valid constitutional predication and clearly violates the basic principles of free speech and federalism.

Garlands testimony before the House Judiciary Committee indicated he could not factually support his own directive.

Instead, it was a political action taken to stifle and intimidate parents from exercising their First Amendment rights.

This is not a Democrat or Republican issue.

This is about upholding the constitutional right of each American to freely express themselves, seek hearing before and redress their grievances from governmental authorities.

More: Question about anti-Asian hate at Dublin forum shows how not talking about race leads toracist talk

Fortunately on Oct. 26, the Ohio School Boards Associationtook a strong standby severing ties with the NSBA and will no longer will be a member of the national association. This decision is a direct result of the letter sent to President Joe Biden, which they claim was sent on behalf of state associations and school membersacrossthe nation. The OSBA stated, "this assertion could not be furtherfrom the truth."

More: Ohio School Boards Association cuts ties with national group over Biden 'terrorism' letter

Their reasonings echo my belief as a parent and my position as an elected official that "there is tremendous value in allowing and encouraging the public to have meaningful input intothe decision-making process."

I applaud this decision and believe it speaks to our state's commitment to uphold Ohioans First Amendment rights, and empowers parents to use their voice to advocate for what they believe is best for their child.

We are not domestic terrorists; we are American parents.

Sen. Kristina Roegner represents the 27th district in the Ohio Senate, which encompasses all or part of Stark, Summitand Wayne counties.

Excerpt from:
Parents have every right. Opposing school boards is not 'domestic terrorism' - The Columbus Dispatch

Republican senators clashed with Attorney General Merrick Garland during a tense Senate Judiciary Committee hearing Wednesday. At issue was the Justice Department's recent memo instructing national law enforcement agencies to protect local school boards from the alleged threat of violently angry parents attending school board meetings.

Garland denied that his memo called for the FBI to police parents upset about school curriculum issues and other policies. He also equivocated on whether a letter from the National School Board Associationwhich had called irate parents a potential source of "domestic terrorism"had prompted his department to act.

Mainstream media reporters seized on an exchange between Garland and Sen. Ted Cruz (RTex.). Aaron Rupar, formerly of Voxand ThinkProgress, described the moment as "Cruz defending Nazi salutes at school board meetings."

Similarly,The Daily Beastheadlined its article, "Ted Cruz Defends Parents Doing Nazi Salutes at School Board Meetings." And on MSNBC, host Ari Melber said Ted Cruz "appeared to defend the right to do the Nazi salute, saying it's 'free speech.'" In response,National Review's Charles C.W. Cooke correctly noted that Cruz isn't merely "saying" it's free speech: "It is free speech. Garland agreed because he, too, knows it's free speech."

Clearly, something was lost in translation. For one thing, the parent doing the Nazi salute was not a Nazi; the parent was accusing the school board of being Nazis. (That is of course hyperbolic, though accusing one's political enemies of being Nazis is a time-honored tactic beloved by both left and right.) More importantly, Cruz was not defending the content of the speech; he was pointing out that it was protected by the First Amendment. As Cruz asserted, and as Garland agreed, parents have the First Amendment right to holler at the school board. And he did not pick this example at random; he cited it because the National School Board Association had mentioned it in its letter. Cruz was arguing, correctly, that First Amendmentprotected activities should not be conflated with violent threats.

Feel free to dunk on Ted Cruz when he deserves it. In this case, he doesn't.

Update: This post initially identified Aaron Rupar as a former employee of Media Matters. He was a former employee of ThinkProgress.

Original post:
Sen. Ted Cruz Was Defending the First Amendment, Not Nazi Salutes - Reason

It keepscoming up, the all-too-common, and all-too-erroneous,tropethat you cant shout fire in a crowded theater. And it shouldnt, because, as a statement of law, it is completely wrong. Its wrong like saying its legal to rob a bank. Or, perhaps more aptly, its wrong like saying its illegal to wear white after Labor Day. Of course such a thing is not illegal. Its a completely made-up rule and not in any way a reflection of what the law on expression actually is, or ever was. And its not without consequence that so many people nevertheless mistakenly believe it to be the law, and in so thinking use this misapprehension as a basis to ignore, or even undermine, the otherwise robust protection for speech the First Amendment is supposed to afford.

This post therefore intends to do two things: explain in greater detail why it is an incorrect statement of law, and also how incorrectly citing it as the law inherently poisons any discussion about regulating online speech by giving the idea of such regulation the appearance of more merit than the Constitution would actually permit. Because if it were true that no one could speak this way, then a lot of the proposed regulation for online speech would tend to make more sense and also raise many fewer constitutional issues, because if it were in fact constitutional to put these sorts of limits on speech, then why not have some of these other proposed limits too.

But the fire in a crowded theater trope is an unsound foundation upon which to base any attempt to regulate online speech because it most certainly is NOT constitutional to put these sorts of limits on speech, and for good reason. To understand why, it may help to understand where the idea came from to end up in the public vernacular in the first place.

Its origins date back to a little over a century ago when the Supreme Court was wrestling with several cases involving defendants having said things against government policy. In particular, President Wilson wanted the United States to enter what eventually became known as World War I, and he wanted to institute the draft in order to have the military necessary to do it. He got his way and these decisions have become part of our history, but at the time they were incredibly contentious policies, and people spoke out against them. The government found this pushback extremely inconvenient for generating the public support it needed. So it sought to silence the loudest voices speaking against it by prosecuting them for their messages.

In the case ofSchenck v. U.S., the defendants had been distributing flyers encouraging young men to resist being drafted. Yes, maybe sometimes you could say such things, the Court decided in upholding their convictions, but sometimes circumstances were such that such expression was no longer permissible. And the standard the Court used for deciding whether it was permissible or not was whether the speech presented a clear and present danger.

But this was a decision that has since been repudiated by the Court. Even Justice Oliver Wendell Holmes, who himself had written the decision, soon came to believe that the standard he articulated inSchenckfor what speech could be punished reached too much speech, and he said as much in his dissent in the subsequentAbrams v. U.S.case, which was another one where the defendants were being prosecuted for ostensibly interfering with the governments wartime policy.

Over time the rest of the Court joined him in the view that the First Amendment protected far more speech than its earlier decisions had allowed. Today the standard for what speech can be proscribed is the much narrower one articulated inBrandenburg v. Ohio, which said that speech can only be prosecuted if it is intended to incite imminent lawless action (read: a riot). It didnt mean provocative speech that might inflame feelings (even the speech of a KKK member was protected) but something farmore precipitous. It is still left room for some speech to be unprotected, but this more restrained standard is much less likely to prohibit too much speech, as the standard from theSchenckdecision had.

In the wake of this later jurisprudence limiting what speech can be punished we can today more easily see, in hindsight, how theSchenckdecision let the government suppress way too much speech, which is why the courts have moved away from it. For instance, war, and even the draft, remain controversial issues, but we now expect to be able to speak against them. Moving away fromSchenckhas made it easier to intuitively understand that the public has the right, and must have the right, to speak against the powerful, including the government. Even if well-intentioned in its actions the government may nonetheless bewrongto do what it wants to do, and what if those intentions are not noble? The greater the impact of the action the government wants to take, the greater the need to be able to speak against it and often the greater the government impulse to shut that speech down.

But whats key for this discussion here is that, despite the obvious error of theSchenckdecision, people are still quoting a part of it as if it were still good law, as if it were EVER good law, and as if the part they are quoting did not itself perpetuate the same fundamental mistake ofSchenckand put too much speech beyond the reach of First Amendment protection which creates its own danger.

Because it was in theSchenckdecision where Justice Holmes included the casual mention about not being able to shout fire in a crowded theater. It was a line that itself was only dicta in other words, it was never actually a statement of law but rather a separate musing used to illustrate the point of law the decision was trying to articulate. It wasnt what the case was about, or a statement that was in any other way given the robust consideration it should have been due if it were to truly serve as a legal benchmark. After all, what if the theater was actually on fire? Would saying so be illegal? Ironically, the people getting the law wrong by citing this line also tend to cite it incorrectly, because what is often omitted from the trope is that Holmes suggested the problem would only arise by falsely shouting fire. But even if this criteria were to be part of the rule, might not such a rule deter people from shouting alarm even if the theater was actually burning? Justice Holmes slipped that single line in the decision as a truth, but it was one he had only just suddenly conjured out of whole cloth. Nowhere did he address the implications of such a rule, or what it would mean when history mistook it as one.

Because it is not the rule. It never was the rule. And it never, ever should be cited today as being the rule. From almost the moment it was judicially uttered it was already out of step with our understanding of what the First Amendment protects, and it has only gotten more and more detached as our understanding of the First Amendments protection and purpose have gotten more precise. Modern jurisprudence has made clear that it is in only the rarest exception where freedom of speech can be impinged. It is therefore legally wrong to suggest otherwise, and even more legally ignorant to use this line to do it.

Perhaps more importantly, though, even if it were the rule, it shouldnt be. Even back in the day of firetrap theaters stuffed with flammable celluloid it was of dubious value as a rule proscribing speech because sometimes speech really needs to be said, and thus it is important maybe even of critical importance that such speech not be chilled. The same is no less true today. Indeed, the more contentious public discourse is, and the higher the stakes, the more important it is that everyone be free, and FEEL free, to express themselves. We cant have people too scared to speak against misuses of power because they might run afoul of someone deciding that certain ideas should not be said. Yet its that fear of recrimination that often is what silences people more than any specific sanction. And its that fear that deprives the public of any benefit of whatever they had to say.

Which is why our understanding of the First Amendments protection has come to be far more broad and permissive than such a rule about crowded theaters would ever allow, because it is the only read of the Constitution that gives the First Amendment its true protective utility. When we speak of the law regarding free speech we speak of a law that understands its better to have too much speech, including some that is valueless, than to risk losing the speech that has value. And its a rule that applies just as much to speech online as off, as the Supreme Court also announced inReno v. ACLU. All of our discussions about online speech should therefore start there, with that principle, and not around single throwaway lines from long discredited opinions that try to pretend that speech is ever so easily unprotected.

Why Falsely Claiming Its Illegal To Shout Fire In A Crowded Theater Distorts Any Conversation About Online Speech

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Congress should craft sound climate change policy by encouraging robust debate.But climate change cannot be an excuse for subverting the Constitution.Yet, in a climate changehearing today,energy companies will be interrogated and required to justify their entitlement to First Amendment rights.This is a dangerous path, and not one that will advance any meaningful climate change solutions.

ASept. 16, 2021 letter,issued by the chairs of the House Oversight and Reform Committee and Environment Subcommittee, has demanded that various energy sector executives appear before Congress. Theyve been asked to testify and plead for their right to exercise free speech with regard to the industrys business practices.

The letter effectively maligned these businesses and requested business documents and private communications. The House committee leaderships objective is to investigate the motivations and sincerity of the free speech these companies conduct in the public square. It is as if individuals now must earn the favor of those in power in order to have the privilege of exercising this constitutional right.

These companies are being summoned because they are not the right kind of speakers with the right kind of words about climate change, according to the committee leadership.The hearing and heavy-handed requests preceding it are designed to squelch the speech of some citizens.The executives called to testify have opinions that do not align with the pre-determined conclusions and policy preferences of powerful government leaders.Such speech favoritism is precisely what the First Amendment was crafted to protect against.

Maintaining unencumbered channels of communication is necessary to have all ideas including those designed to influence the government compete and for the best policy proposals to win out in the marketplace of ideas.

The committees also claim authority to scrutinize the speech included in branding and lobbying.Suddenly they are the self-appointed arbiters of good lobbying and bad lobbying.Lobbying can have all kinds of flaws, but it is lawful speech and part of the Founders design for citizens to have the power to educate their representatives.

Furthermore, labeling ordinary lobbying or public information material as disinformation simply because you disagree with the conclusions does not make that speech any less protected.Otherwise, those in power could just squelch opposing views by ipse dixit.They could simply assert that assessments of law, policy or facts on the ground that conflict with their own are objectively false and thus should not be vetted in the public square.We need to open the doors to debate instead of closing them and allowing only echoes of our own preferences to be heard.

The committee also claims it is trying to expose that the energy companies didnt really mean it when they took public stances in support of climate actions.Its audacious for lawmakers to advance this claimed authority to call business executives into a hearing so they can grill them on the sincerity of belief in their speech.

To add to the First Amendment attack, the Sept. 16 letter assaults companies for speaking through trade associations, something that is also independently protected by the freedom of association in the First Amendment.As Alexis de Tocqueville recognized long ago, the ubiquitous spirit of association in America is one engrained in not just the Constitution but also our countrys character.

Too often, climate change excites passions that puts our fundamental values at risk.Positions on rights should be about principle, not power and politics.Yet, some of the same Democrats making demands of the energy companies and their executives today endorsed the position of a group of scholars in a letter submitted to the HouseCommittee on Science, Space, and Technologyback on Sept. 12, 2016.That letter concluded that subpoenas and threats of future sanctions to the Union of Concerned Scientists and other environmental groups themselves threaten the First Amendment directly inhibiting the rights of their recipients to speak, to associate and to petition state officials without interference from Congress.

It is wrong no matter what party claims to wield such unlawful weaponry of compulsion.The flip here demonstrates how easily we can slip into coercive erosion of individual rights by majorities no matter what party is in control if those rights are not vigilantly guarded.Political expediency or the identification of (dis)favored citizens should not be excuses to punish those exercising their rights.

We have never allowed the government to choose who is worthy to speak and who is not.Climate change can be addressed without subverting the Constitution. And we must tread carefully.Even small alterations to our respect for fundamental rights tend to create permanent chips in the pillars of the foundation of freedom, making it ever less stable.

Donald J.Kochanis professor of law and deputy executive director of the Law & Economics Center at George Mason University Antonin Scalia Law School.

Read more from the original source:
There's no climate change exception to free speech | TheHill - The Hill