Category Archives: First Amendment

The U.S. Supreme Court has agreed to hear a case this term that pits the two religious liberty clauses of the First Amendment against each other on a flagpole.

At issue is a request by a Christian civic group, Camp Constitution, for the City of Boston to allow a Christian flag to fly on one of two City Hall flagpoles commonly used by civic groups and movements. The city offers groups the opportunity to fly their flags briefly on the two poles to encourage civic engagement.

To date, the city has allowed at least 284 private organizations to raise their flags and never had turned down a request until Camp Constitution asked to fly what is commonly known as the Christian flag a white background with a blue square at the upper-left corner containing a red cross. The group wanted to fly the flag for about an hour on Constitution Day 2017, to commemorate Constitution Day and the civic and cultural contributions of the Christian community to the city of Boston, the Commonwealth of Massachusetts, religious tolerance, the rule of law and the U.S. Constitution.

Flags previously flown on the poles include the flags of various countries, a Juneteenth flag,the LGBTQ rainbow pride flag and the transgender rights flag.

Camp Constitutions request was denied because the group wanted to fly the flag of a single religion, which city leaders feared would place them in violation of the First Amendments Establishment Clause, which says government may not give preferential treatment to one religion over other religions.

On the other hand, Camp Constitution claims the city denied its First Amendment rights to free exercise of religion the other half of the First Amendments religious liberty statement.

There is no evidence the city had been asked previously to fly the flag of any other single religion, although Camp Constitutions attorneys point out that they had flown the Turkish flag, which depicts the Islamic star and crescent, and the Portuguese flag, which uses religious imagery.

In January, the First U.S. Circuit Court of Appeals sided with the city, which argued that the flagpole is not a public forum, the citys raising of a third-party flag is government speech, and the city can choose the views it wants to express. The appeals court supported the original ruling of a federal judge who first heard the case.

Camp Constitution appealed that January ruling to the Supreme Court, which chose the case from among hundreds of other cases denied hearing.

Americans United for Separation of Church and State was among the first religious liberty watchdog groups to urge the Supreme Court to reject Camp Constitutions claim, noting the case, Shurtleff v. Boston, could significantly endanger religious freedom and church-state separation.

Americans United President Rachel Laser said: The separation of church and state is the constitutional principle that guarantees everyones right to religious freedom and to be treated equally under the law. To protect this core American principle and to respect the religious diversity that defines our country, the Supreme Court should not force the City of Boston to fly a Christian flag at city hall.

Forcing the city government to fly a Christian flag on its property would not only undermine the foundational principle of church-state separation, it would play right into the hands of Christian nationalists who want the government to force everyone to live by their beliefs threatening everyones religious freedom and widening inequality in our communities and country, she added.

Camp Constitution is being represented by Liberty Counsel, an evangelical Christian ministry active in pursing religious liberty cases, especially those focused on free exercise claims.

We look forward to the U.S. Supreme Court hearing Bostons unconstitutional discrimination against Camp Constitutions Christian viewpoint, said Liberty Counsel Founder and Chairman Mat Staver. The city cannot deny the Christian flag because it is Christian and allow every other flag to fly on its flagpoles. There is a crucial difference between government endorsement of religion and private speech, which government is bound to respect. Censoring religious viewpoints in a public forum where secular viewpoints are permitted is unconstitutional and this case will set national precedent.

Related articles:

On religious liberty views and other issues, theres still a wide gap between evangelicals and the rest of America

Religious liberty is being hijacked: expressing our faith responsibly within the civic realm | Opinion by Molly Marshall

BJC offers timely answers to questions about religious liberty

Excerpt from:
Supreme Court will hear Boston flag case that pits First Amendment religious liberty clauses against each other - Baptist News Global

The months-long legal dispute of publisher Activision trying to take down an indie web-based incremental strategy board game to safeguard its lucrative Warzone trademark has hit a new lawful curve.

According to court documents obtained for a hearing which took place in the United States District Court for the Central District of California earlier in the month, plaintiff Activision admitted that defendant Warzone.com was the first one to use the Warzone trademark in 2017, nearly three years before Call of Duty: Warzone was officially released.

However, Activision still argues that its use of the Warzone trademark as the title for its [Call of Duty] game is protected under the First Amendment and as such seeks massive damages from the defendant for reverse trademark infringement. That in addition to forcing the indie developer to completely abandon the Warzone trademark for its web-base game.

Activision has now forwarded a motion to dismiss any and all counterclaims made by the defendant. Warzone.com has in return pleaded that if the motion to dismiss is accepted by the court, it would signal that a corporate giant can claim the mark of a direct competitor without the claimant even being afforded an opportunity via discovery to explore the issues presented, merely because the defendant is using the claimants mark in the title of an expressive work.

It would mean that a large corporation can engage in reverse trademark confusion with impunity even filing for the same trademark for the identical description of goods. Such an outcome would place a fist not a thumb firmly on the First Amendment side of the scale balancing the constitutional interests between Lanham Act protection and free expression.

Activision sued Warzone.com several months back for using the same name as its own battle royale phenomenon despite Call of Duty being at least three years late. In a statement given to SegmentNext earlier today, the makers of Warzone.com reminded that Activision made this a legal dispute after endless effort by us to resolve the situation and now we will fight to the very end.

Go here to read the rest:
Activision's Banking On The First Amendment To Win Warzone.com Trademark Lawsuit - SegmentNext

This is the fourth in a series of five posts based on my piece in the Northwestern Law Review comparing the Second and Seventh Amendment. The last post described the distinction between substantive and procedural rights, and the importance of that distinction. In this post, I look more closely at the problem of procedural rights and explain how they block important reforms.

The U.S. Supreme Court's struggles over whether to apply the first eight amendments of the Constitution to the states illustrate the problem with procedural rights. Applying one of these rights to the states is called incorporation. Early on, the federal courts shut down any notion of applying the first eight amendments to the states, as explained in Chief Justice John Marshall's 1833 opinion in Barron v. Mayor of Baltimore. After ratification of the Fourteenth Amendment in 1868, the question became more acute.

Understanding the difference between substantive and procedural rights helps enormously in explaining the otherwise seemingly chaotic decisions about incorporation. The U.S. Supreme Court first incorporated substantive rights. In 1897, the Court applied the Takings Clause against the states, and in 1925, the free speech and free press rights of the First Amendment. The process of incorporating substantive rights has continued, right up to the decision to incorporate the Second Amendment in McDonald v. City of Chicago in 2010. The Court understood these substantive provisions to be fundamental to a free society.

But the procedural provisions long resisted incorporation. Some justices, especially Benjamin Cardozo, Felix Frankfurter, and the younger John Harlan, understood that the states needed flexibility to develop effective systems of adjudication. In Palko v. Connecticut in 1937, for example, Justice Cardozo wrote for the Court refusing to incorporate the Double Jeopardy Clause against the states. Connecticut allowed the prosecution to appeal an acquittal. Although he did not use the terms, Justice Cardozo drew a significant distinction between substantive rights and most procedural rights. Describing "freedom of thought, and speech," he wrote, "Of that freedom one may say that it is the matrix, the indispensable condition, of nearly every other form of freedom." Therefore it was properly applied against the states. On the other hand, the rights to jury trial, grand jury indictment, the prohibition against double jeopardy, and the privilege against self-incrimination "are not of the very essence of a scheme of ordered liberty. Few would be so narrow or provincial as to maintain that a fair and enlightened system of justice would be impossible without them." Justice Cardozo took an informed comparative view, one that allowed the states flexibility.

Likewise, in Wolf v. Colorado in 1949, Justice Frankfurter wrote the Court's opinion incorporating the substantive Fourth Amendment right to be free from unreasonable governmental searches and seizures. He declared that right to be "basic to a free society." But he refused to incorporate the procedural exclusionary rule that the Court had developed for the federal courts. Justice Frankfurter explained that the methods of checking violations, the remedies for violations, and the means of enforcing those remedies "are all questions that are not to be so dogmatically answered as to preclude the varying solutions which spring from an allowable range of judgment." Again, flexibility was to be permitted to the states on matters of procedure.

And in Duncan v. Louisiana in 1968, Justice Harlan vigorously argued in dissent against incorporating the criminal jury right: "The States have always borne primary responsibility for operating the machinery of criminal justice within their borders, and adapting it to their particular circumstances." Interfering with state procedure through incorporation of federal constitutional provisions was a mistake: "neither history, nor sense, supports using the Fourteenth Amendment to put the States in a constitutional straitjacket with respect to their own development in the administration of criminal or civil law."

Unfortunately, Justice Harlan was fighting a losing battle. By 1968, the Court was launched on its procedural rights revolution. Justice White wrote for the Court in Duncan, incorporating the right to criminal jury trial against the states. He came up with a test for incorporationwhether a particular right is "necessary to an Anglo-American regime of ordered liberty"which he buried in a footnote. The test was disingenuous because it did not explain the cases at all, though Justice White claimed that it did. Recently-created procedural rights unknown in England were said to meet this test. Such a test would be unworkable even if the Court were really trying to apply it. The "Anglo-American" regimes of "ordered liberty"that is, procedural systemswere constantly changing, in important ways.

Most likely, what was really behind Duncan and many other 1960s cases was concern about the treatment of black defendants. (Duncan was a 19-year-old black man charged with assaulting a white boy.) The constitutional procedural-rights revolution was essentially part of the civil rights movement, and importantly linked to the Cold War. The United States could hardly claim to be a beacon of liberty for the free world if it treated black defendants badly.

But insisting on certain procedural rights turned out to be a terrible way to address that concern. The good intentions of the justices backfired, because they ignored the law of unintended consequences. Insisting on jury trial has resulted in the denial of any form of adjudication. Jury trials are long, expensive, and unpredictable. The state and federal systems have turned to plea bargaining instead, and applied ever-greater pressure on defendants to make that happen. Today, in the federal system, over 97% of criminal convictions are the result of a guilty plea, with no trial of any kind, jury or bench. Hundreds of thousands of black menand othershave gone to prison through plea bargains, without any adjudication at all.

Specific procedural rights have failed. Not only have they not improved procedures for criminal defendants; they have made things worse.

Despite its criminal procedure binge, even now, the U.S. Supreme Court is reluctant to incorporate all procedural rights against the states. The Fifth Amendment right to grand jury indictment and the Seventh Amendment right to civil jury trial have not been incorporated. At least to some extent, the federal courts seem to have understood that procedure needs to be flexible, to adjust.

The experience of other countries shows the wisdom of flexibility concerning procedure.

Unlike substantive provisions, specific procedural provisions are not compatible with a wide variety of legal systems. Many are deeply incompatible. As an example, the independent jury has proved to be deeply incompatible with civil law, or inquisitorial, systems. By independent jury, I mean groups composed entirely of laypeople who deliberate and make adjudicatory decisions apart from professional judges. The independent jury is at odds with the goals of reasoned decision-making and full appeal that are so important to civil law systems. Inquisitorial systems have tried to adopt the independent jury for criminal cases, and it has failed. Germany, Italy, and France abandoned the independent jury in favor of a mixed panel of professional judges and lay jurors. Japan also uses a mixed panel. In theory, Spain and Russia today have independent criminal juries for serious cases. But in practice, judges and lawyers in those countries have greatly diminished jury trial, by prosecutors undercharging and courts using abbreviated procedures. The use of civil juries is so alien to civil law systems that almost none of them adopted it, or even tried to.

The civil jury has also proved to be incompatible with the current legal system of every other common law country. In England, Canada, Australia, and New Zealand, the civil jury has been virtually eliminated. Those legal systems developed independent and reasonably competent judiciaries. Under the circumstances, the legal profession and members of the general public thought that the use of civil juries was an unnecessary expense and delay. (See Rene Lettow Lerner, The Surprising Views of Montesquieu and Tocqueville about Juries: Juries Empower Judges, 81 Louisiana Law Review 1, 49 (2020).) Loss of the civil jury doesn't seem to have done these countries any harm. One would be hard pressed to argue that their civil justice systems are worse than that of the United States. Alexander Hamilton was right. The trend in favor of limiting civil juries continued, to the point of elimination. Free from the constraint of constitutional rights to civil jury trial, other common law countries have been able to make appropriate reforms.

The next and final post shows the results of the weakness of procedural rights, and the relative resilience of substantive rights. It describes the terminal decay of the Seventh Amendment, and the revival of the Second Amendment.

Link:
The Second Amendment vs. the Seventh Amendment: Procedural Rights and the Problem of Incorporation - Reason

from the criticizing-the-government-still-at-the-top-of-the-1st-Amendment-list dept

When government entities use private companies to interact with the public, it can cause some confusion. Fortunately, this isn't a new problem with no court precedent and/or legal guidelines. For years, government agencies have been utilizing Twitter, Facebook, Instagram, etc. to get their message out to the public and (a bit less frequently) listen to their comments and complaints.

Platforms can moderate content posted to accounts and pages run by public entities without troubling the First Amendment. Government account holders can do the same thing, but the rules aren't exactly the same. There are limits to what content moderation they can engage in on their own. A case involving former president Donald Trump's blocking of critics resulted in an Appeals Court decision that said this was censorship -- a form of viewpoint discrimination that violated these citizens' First Amendment rights.

A decision [PDF] from a federal court in Arkansas arrives at the same conclusion, finding that a page run by local law enforcement engaged in unlawful viewpoint discrimination when it blocked a Facebook user and created its own blocklist of words to moderate comments on its page. (h/t Volokh Conspiracy)

This case actually went in front of a jury, which made a couple of key determinations on First and Fourth Amendment issues. The federal court takes it from there to make it clear what government agencies can and can't do when running official social media accounts.

Plaintiff James Tanner commented on the Arkansas State Police's Facebook page with a generic "this guy sucks" in response to news about the promotion of a state trooper. That post was removed -- then reinstated -- by the State Police.

While that may have been a (temporary) First Amendment violation, the court says this act alone would not create a chilling effect, especially in light of the comment's reinstatement shortly after its deletion.

However, the State Police took more action after Tanner contacted the page via direct message with messages that were far more direct. In response to the State Police's threat to ban him if he used any more profanity in his comments, Tanner stated: "Go Fuck Yourself Facist Pig." For that private message -- seen by no one but Tanner and Captain Kennedy, who handled moderation of the State Police page -- Tanner was blocked. Kennedy compared the block of Tanner as the equivalent of "hanging up" on a rude caller.

The court disagrees. It's not quite the same thing. "Hanging up" on someone terminates a single conversation. What happened here was more analogous to subjecting Tanner to a restraining order that forbade him from speaking to state troopers or about them.

Tanner profanely criticized the State Police for the deletion of his comments. That was protected speech, as "the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers." City of Houston, Texas v. Hill, 482 U.S. 451, 461 (1987). That protection extends to saying "fuck you" to a police officer in person, Thuraraijah v. City of Fort Smith, Arkansas, 925 F.3d 979,985 (8th Cir. 2019), and the Court doesn't see a meaningful difference in the circumstances presented here. Plus, though profane, Tanner's private messages also criticized the actions the State Police took in response to his Facebook comments. The Court finds that the agency's decision to block Tanner was an adverse action that would chill a person of ordinary firmness from continuing in the activity.

[...]

The page administrators can, as Kennedy put it, hang up on Tanner's private messages. They can ignore them. They can delete them. The State Police may not, however, block Tanner from participating in its designated public forum based on his profane private messages. If the State Police had designated an area outside its headquarters as a place for citizens to stand and speak, the agency could not bar Tanner from doing so simply because he had cursed at a Trooper on the telephone.

Adding to the First Amendment violations was the Police's handcrafted blocklist, which added words and phrases not deemed offensive by Facebook's moderation rules. This was apparently unexpectedly revealed during discovery and the blocklist shows the agency engaged in automated viewpoint discrimination.

In addition to selecting a profanity filter setting, Facebook page administrators can also add specific words to a filter list. Corporal Head added the following words: "jackass", "pig", "pigs", "n*gga", "n*gger", "ass", "copper", and "jerk". Doc. 70-14 at ,r 15.

These terms blocked a couple of Tanner's last comments on the State Police page prior to the agency blocking his account completely. The court doesn't care for this at all.

First, it says the agency doesn't even know what content it's blocking because it has yet to obtain a list of terms/phrases blocked by Facebook's moderation efforts. Without this information, it can't definitively testify how much otherwise permissible speech is being blocked by proxy.

Far more troubling is the State Police's artisanal blocklist, which obviously aims to mute as much criticism of law enforcement as possible.

[T]here is no plausible explanation for the words "pig", "pigs"," copper", and "jerk" being on the State Police's list of additional bad words other than impermissible viewpoint discrimination.

This is an additional First Amendment violation, above and beyond what was affirmed by the jury's verdict.

The slang terms "pig", "pigs", and "copper" can have an anti-police bent, but people are free to say those words. The First Amendment protects disrespectful language. And "jerk" has no place on any prohibited-words list, given the context of this page, the agency's justification for having a filter, and the harmlessness of that word. Though some amount of filtering is fine in these circumstances, the State Police's current list of specific words violates the First Amendment.

Tanner wins. The State Police lose and will hopefully learn something from this remedial First Amendment class. Whatever judgment is rendered (Tanner was only asking for nominal damages in one count, but there are multiple allegations here), the State Police will have to pay. Qualified immunity has already been denied and the additional determinations made by the court make it extremely clear this was clearly established violation of Tanner's First Amendment rights.

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Filed Under: 1st amendment, muting, police, social media

View original post here:
Court Tells Arkansas Troopers That Muting Anti-Cop Terms On Its Facebook Page Violates The 1st Amendment - Techdirt

Karin Olofsdotter, the Swedish ambassador to the United States, will discuss the importance of a free press at the Cronkite Schools First Amendment Forum on Wednesday, Nov. 3 from 10 to 11 a.m.

The event is sponsored by Cronkite Global Initiatives under the direction of Juan Mundel, director. Students and faculty are encouraged to attend. Coffee, tea and donuts will be provided.

Sweden has the worlds oldest law governing Freedom of the Press and Olofsdotter is a strong advocate for press freedom across the globe.

Appointed ambassador of Sweden to the U.S. on Sept. 1, 2017, Olofsdotter is an accomplished diplomat. Her career in the Foreign Service started in 1994 with her first posting to the Embassy of Sweden in Moscow. In the years following, she worked in security policy and defense issues as well as in numerous leadership posts within the Ministry for Foreign Affairs, including serving as chief of staff for several of its ministers and director of the Ministers Office. She has also served as a member of the Swedish delegation to NATO and at the Swedish EU Representation in Brussels, working with European security policy and defense issues.

Olofsdotter also served as deputy chief of mission at the Embassy of Sweden in Washington, DC. For three years until 2011 when she was appointed ambassador of Sweden to Hungary.

A longtime advocate for Swedish trade and diplomatic relations with the United States, Olofsdotter brings extensive experience in trade promotion to her current post. Prior to assuming the ambassador role, she served as director-general for trade at the Swedish Ministry for Foreign Affairs. She has also held the position of deputy director-general and head of the Department for Promotion of Sweden, Trade, and CSR at the Foreign Ministry.

Olofsdotter said she has a strong affection for the United States, having lived, studied, and worked in different parts of the country, including during a high school exchange program, as an undergraduate student at the UCLA Anderson School of Management, and through her various diplomatic postings.

She has a B.A. in psychology, economics and Russian, and she speaks French, Russian and English.

Read the rest here:
Swedish ambassador to the United States to visit the Cronkite School - Walter Cronkite School of Journalism and Mass Communication

A group of educators and civil rights groups is challenging Oklahoma's new law limiting public school teachings on race and gender issues in court.

The lawsuit, backed by the American Civil Liberties Union and the ACLU of Oklahoma, was filed Tuesday. The organizations argue that HB 1775, which took effect in May, interferes with students' and educators' First Amendment rights to learn and talk about gender and race issues in school.

This policy also prevents students from discussing in-depth American history that reflects the experiences and viewpoints of "all historically marginalized communities in this country," the ACLU argues.

The groups suing asked the court to declare the law unconstitutional under the First and 14th Amendments. They also requested that a judge issue a preliminary injunction that would put an immediate stop to the policy in Oklahoma.

"All young people deserve to learn an inclusive and accurate history in schools, free from censorship or discrimination," said Emerson Sykes, staff attorney with the ACLU Speech, Privacy, and Technology Project.

The organization said this lawsuit is the first of its kind that challenges a state's effort at limiting instruction on critical race theory, which examines how racism as a social construct intersects with history, policy, the law and other areas. It's an advanced teaching usually reserved for law schools and undergraduate sociology courses.

This concept was pushed into the public consciousness by former President Donald Trump last year. Right-wing activists have since made it a cause clbre and several Republican-led states, including Oklahoma and Idaho, have passed laws attempting to limit its reach in public schools.

But Oklahoma's law doesn't explicitly mention critical race theory in the legislation's text.

HB 1775 states broadly: No public school student in Oklahoma can be required to participate in any form of "mandatory gender or sexual diversity training or counseling." It goes on to say, "Any orientation or requirement that presents any form of race or sex stereotyping or a bias on the basis of race or sex shall be prohibited."

Similarly, lessons showing one race or gender is superior to another or that a person, because of their "race or sex, is inherently racist, sexist or oppressive" are banned.

If teachers are found to be teaching these lessons, they could lose their licenses and schools can lose their accreditation.

"HB 1775 is so poorly drafted in places it is literally indecipherable that districts and teachers have no way of knowing what concepts and ideas are prohibited," ACLU attorney Sykes said. "The bill was intended to inflame a political reaction, not further a legitimate educational interest. These infirmities in the law are all the more troubling because the bill applies to public colleges and universities, where the First Amendment is especially protective of academic freedom."

The ACLU says as a result of the law's approval, school districts in Oklahoma have told teachers not use terms like "diversity" and "white privilege" in the classroom. Books and other literary works dealing with race such as To Kill a Mockingbird and Raisin in the Sun have been removed from reading lists

Some schools have also limited or altogether eliminated diversity, equity and inclusion training for their educators, according to the group.

Read the rest here:
Teachers and civil rights groups sue over Oklahoma's ban on critical race theory - NPR

Removing Oceti Sakowin Essential Understandings (OSEU) and Native American topics from the South Dakota Department of Educations content standards and assembling a second committee to recommend entirely new revisions likely violates federal and constitutional law, the ACLU of South Dakota said in a letter this week to Gov. Kristi Noem and members of the Board of Education Content Standards Committee.

The initial standards, developed by a nearly 50-person working group, provided an opportunity for Indigenous students to feel welcome, respected and encouraged to receive education relevant to their culture, similar to what white students already receive within South Dakotas public school system. By removing OSEU and Native American references, the Department of Education likely violates federal Equal Protection and First Amendment provisions of the United States Constitution. It also likely violates Article VIII, Section 1 of the South Dakota Constitution, which guarantees its citizens, including Indigenous students, the right to schools that are equally open to all and requires the DOE to adopt all suitable means to secure to the people the advantages and opportunities of education.

The removal of recommended OSEU and Native American topics from the content standards deprives students of their right to receive information and ideas and racially discriminates or has the effect of racially discriminating against Native Americans in South Dakota, said Stephanie Amiotte, ACLU of South Dakota legal director. It also censors information provided to students based on race.

Convening a second content standards working group to start the process over again, however, will not correct the constitutional violations created by the Department of Education unless the second group includes the same amount or more OSEU and Native American topics in their revisions to the content standards.

Equal access to learning about Native American heritage and culture in our educational institutions is important, Amiotte said. The ACLU supports the protection of students First Amendment right to receive information as part of their education, including education on Oceti Sakowin culture, heritage and history. In conjunction with this effort, the ACLU seeks to preserve the Equal Protection rights of All South Dakotans and its Indigenous students, citizens and teachers under both the state Constitution and U.S. Constitution. Our history must be accurately represented in every classroom.

A link to the ACLU letter is below.

ACLU Ltr to Gov Noem and DOE Content Standards Board 102121

Original post:
ACLU of South Dakota: Dept. of Education revisions to Social Studies Standards, creation of second working group likely violate federal and...

In the United States, courts are presumptively open to the public. Generally speaking, anyone can attend a trial or a judicial hearing, and documents filed in court are available for anyone to inspect. This presumption is deeply rooted in our common law tradition and a constitutional right. The idea is that transparency improves the quality and legitimacy of judicial decision-making and accordingly, what happens in court is the publics business. As Chief Justice Burger wrote more than 40 years ago, People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.

Yet so often the publics right to observe judicial proceedings is neglected. The culprit, weve found, is often a lack of clear processes. Under the constitutional and common law rights of access, courts may close their doors or seal their records only in rare circumstances. But surprisingly, there is no uniform procedure in the federal district courts for putting these constitutional and common law rights into effect. The result is that each of the nations 94 federal judicial districts is free to adopt its own procedureor notto handle record sealing. In that void, a mishmash of local rules and practices has developed that do little to preventand sometimes even requirethe improper sealing of court records. This can lead to dangerous consequences, including concealing public health and safety risk information related to medical devices, drugs, and consumer products from the public and regulators.

As we argue in a proposal that we recently submitted to the Federal Rules Committee, the time has come for the courts to adopt a uniform procedure for sealing that protects the publics right of access to court records.

The Disorderly State of Federal Court Sealing Practices

The publics right to attend court hearings and read court filings is not absolute, but before a court may seal its proceedings or records, a judge must make an explicit determination that the right of access has been overcome. The test is a strict one. Under the First Amendment, documents may be sealed only if there are overriding interests requiring secrecy, and only if the proposed sealing order is effective and narrowly tailored to serve those interests. The common law imposes a similar test, balancing the publics interest in openness against the specific rationales offered for secrecy.

In theory, every proposal to seal court proceedings or records should be vetted under these tests. In practice, however, there is no uniform federal procedure ensuring that they will be. There is no guarantee that any given court or judge will even require lawyers to file a formal request to seal or submit arguments in support, or that it will even issue a public judicial decision explaining what was sealed and why. When it comes to sealing, the federal courts are a procedural Wild West. Each district courtand every individual judgecan adopt their own idiosyncratic practices. There is no common baseline that these local practices must meet.

This disorderly state of affairs has had predictable consequences. Decisions to seal are opaque and sometimes clearly mistaken. Many times, for example, judges simply rubber-stamp a request to seal without providing any explanation at all. In one commonly seen pattern, entire filings end up sealed simply because the lawyers for the plaintiff and defendant agreed to keep them secret, without any apparent consideration of whether the publics right of access was overridden.

Another common pattern involves judges allowing parties to seal filings simply because one side marked the document confidential during pre-trial discovery. At least one district court has effectively codified this practice district-wide. This approach to sealing cuts out of the calculus entirely the public interest in transparency, instead putting decisions about court secrecy in the hands of the lawyers in the case, who are often motivated to keep embarrassing information about their clients out of public view and who are rarely interested in facilitating public scrutiny of a court dispute.

The absence of uniform rules also means that practices can differ radically from one federal district to the next. The three federal districts in Georgia, for example, take three different approaches to sealing court records. A lawyer litigating in the federal courthouse in Savannah has the benefit of detailed, clear, and comprehensive rules that tell lawyers how to address issues like the scope and duration of proposed sealing orders, and that remind them of the applicable legal standards that govern sealing. Drive a few hours west to Macon, however, and the Middle District of Georgias local rules say nothing about sealing at all. The only guidance a lawyer will find are instructions about how the electronic filing system handles sealed documents. Ninety miles away in Atlanta, the Northern District of Georgia likewise has nothing in its local rules that govern sealing, only providing e-filing guidance for sealed documents on the courts website.

In the absence of baseline federal rules, some courts have even adopted local rules that squarely violate the right of access. In one federal district court in upstate New York, for example, the local rules previously required that motions to seal and any sealing order issued by a court be sealed. In other words, the rules prevented the public from learning what had been sealed and why. This kind of meta-secrecy violated binding appellate precedents, but it had been required by the courts local rules for years. (Fortunately, the court changed its rules after we filed a proposed amendment bringing this and other problems to its attention.)

Bringing Judicial Secrecy Out of the Shadows

The lack of uniform sealing procedures has resulted in excessive secrecy that has caused considerable harm.

In 2019, investigative journalists and data scientists published Hidden Injustice, a series of news stories documenting widespread abuse of record sealing. The underlying investigationconducted by Reuters in collaboration with Westlawexamined the dockets of a substantial number of federal mass torts cases, revealing widespread disregard of the procedural requirements for sealing court records from the public.

The series revealed that federal judges sealed evidence related to public health and safety in about half of the 115 biggest defective-product cases over the past 20 years. In the vast majority of those cases, judges did not provide an explanation for sealing, even though case law and well-established principles require them to explain their reasoning. As Reuters noted in one of its stories:

In practice, secrecy has become so ingrained in the system that judges rarely question it. In 85 percent of the cases where Reuters found health and safety information under seal, judges provided no explanation for allowing the secrecy.

Prompted by the Reuters investigation, the House Judiciary Committee held a hearing on judicial secrecy a few months later. In response to pointed questions from the committee, a representative of the federal judiciary, Judge Richard Story, acknowledged that improper sealing practices occur.

The federal judiciary has previously acknowledged the problem of inconsistent and improper sealing practices. In 2009, the Federal Judicial Center issued a report concerning cases that had been sealed in their entiretymany of which appear to have been sealed on dubious grounds. And in 2010, the Center issued nonbinding guidance designed to minimize the improper sealing of court records. The guidance included a procedural checklist with clear, uncontroversial procedures for motions to seal.

Ultimately, these hortatory efforts have not succeeded in regularizing sealing practices. Procedures remain inconsistent from one district to the next. More troubling, this laxity means that records are sometimes sealed without notice to the publicor without any apparent judicial consideration for whether it is warranted or for how long. In short, the absence of clear procedural rules means that litigantsand sometimes courtseasily and too often neglect to address the propriety of sealing court records under the First Amendment and common law rights of access.

Recognizing the need for reform, in 2020, Professor Eugene Volokh, the Reporters Committee for Freedom of the Press, and the Electronic Frontier Foundation submitted a proposed federal rule on sealing. The Advisory Committee on Civil Rules has twice considered the proposal, raising questions about the necessity of a uniform rule to replace the current patchwork of local rules and practices.

Responding to those questions, the Knight First Amendment Institute at Columbia University, the Civil Rights & Transparency Clinic at University at Buffalo School, and Professor Jonathan Manes at Northwestern Pritzker School of Law recently submitted an alternative proposed Federal Rule of Civil Procedure 5.3 on record sealing. The submission emphasizes the unsavory history of judicial secrecy and adds to the mix original empirical research into the highly divergent local practices of district courts, similar to those described above.

The Advisory Committee is likely to take up our proposal at its spring meeting.

An Easy Win for Judicial Integrity

There can be good reasons for sealing court records, but the public will be rightfully skeptical of judicial secrecy in the absence of a robust and transparent process for deciding whether that secrecy is necessary. At a moment when the legitimacy of the federal courts is under attack, a rule finally establishing uniform, robust procedures for sealing should be an easy win to notch. By enacting such a rule, the courts would reassure the public that if something has been locked away in a courts files, there has at least been fair and public consideration of whether the need for secrecy outweighs the public interest in transparency.

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Judicial Secrecy: How To Fix the Over-sealing of Federal Court Records - Just Security

Removing the flipping obscenities from license plates on Maines roads and highways isnt going to happen overnight, even though a law banning such profanities in a state where such regulation has been unusually lax goes into effect Monday.

Currently, there are license plates with salty language including f-bombs, references to anatomy and sex acts, and general insults. One license plate says simply, F-Y0U except that on the plate, its plainly spelled out.

Now, rule-making is getting underway to ensure the law protects First Amendment rights while getting rid of obscene language.

The process, which includes public comment, could take between two to four months, Secretary of State Shenna Bellows said.

Requests for so-called vanity license plates that are deemed to be potentially offensive will be on hold in the meantime. Eventually, the state will begin recalling previously issued plates, likely this winter.

Rule-making will delay the process of active removal of plates from the road but will help us balance the free speech rights of citizens and the public interest of removing inappropriate license plates, she said.

A majority of states have restrictions on license plate messages that are considered profane, sexually suggestive, racist, drug related, politically objectionable or religiously offensive.

But Maine became the wild, wild, wild west of vanity license plates when the state dropped its review process in 2015. Our anything-goes approach was unusual, Bellows said.

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Removing obscenities from vanity plates will take time - LimaOhio.com

Members of the media film four of the original surviving Magna Carta manuscripts that were brought together by the British Library for the first time, during a media preview in London, Monday, Feb. 2, 2015. The event marked the 800th anniversary of the Magna Carta, which established the timeless principle that no individual, even a monarch, is above the law. The original Magna Carta manuscripts were written and sealed in late June and early July 1215, and sent individually throughout the country. (AP Photo/Alastair Grant, used with permission from the Associated Press)

The Magna Carta, or Great Charter, is a series of concessions that English noblemen extracted from King John I at Runnymede, England, in 1215, and that some later monarchs reissued. The documents preamble and 63 clauses remain an important foundation for the rights claimed by English citizens, including those who immigrated to the United States.

Although Britain continues to operate according to the principle of parliamentary sovereignty and has never adopted a single written document, such as one resembling the U.S. Constitution, British citizens still look to the Magna Carta, as well as the later Petition of Right (1628) and English Bill of Rights (1689), as establishing fundamental principles that the government dare not violate. John Locke and William Blackstone were among the English legal theorists who expanded the principles of liberty in the Magna Carta.

In Americas colonial days, the most significant principle of the Magna Carta was that the king had no power to tax persons who were not represented in the government. Colonists cited this principle of no taxation without representation in the Declaration of Independence and in other documents that asserted colonial privileges. Before the Revolutionary War, the colonists viewed the charters issued to them by the king in the same way that they viewed the Magna Cartaas providing protections for their rights. Many of these protections were later incorporated into state constitutions before being expanded and incorporated into the U.S. Constitution and its Bill of Rights.

Clause 29 of the Magna Carta prevented the English government from jailing or punishing an individual except by the lawful judgment of his peers and by the law of the land. This clause is generally understood to provide the foundation of the due process clause of the U.S. Constitutions Fifth and Fourteenth Amendments.

The idea that nobles could meet with the king and present him with a set of grievances arguably foreshadowed both the peaceable assembly and petition provisions of the First Amendment. The provision of the Magna Carta that appears closest to the First Amendment is in Clause 1: The English Church shall be free, and shall have her rights entire, and her liberties inviolate. This text hardly prevents the establishment of a national church (Britain continues to recognize the Episcopal Church as the established church), as does the First Amendment, but it does acknowledge a sphere in which religious claims should be free of state supervision and control. Moreover, claims once associated specifically with the nobility have been widened both within Britain and the United States to include all citizens.

In 2015, the British Library featured a display of the Magna Carta, the U.S. Declaration of Independence, and the U.S. Bill of Rights to mark the 800th anniversary of the Magna Carta.

John Vile is a professor of political science and dean of the Honors College at Middle Tennessee State University. He is co-editor of the Encyclopedia of the First Amendment. This article was originally published in 2009.

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Magna Carta | The First Amendment Encyclopedia