Category Archives: First Amendment

InLippert Components, Inc., 371 NLRB No. 8 (2021), three members Lauren McFerran, John Ring, and Marvin Kaplan joined in an opinion holding that a union did not violate that NLRB by displaying Scabby and two large banners near the public entrance of a trade show at which a neutral employer was present.

In a separate concurrence, Chairman McFerren pinned her vote on Board precedent.

In todays decision, a majority of the Board agrees that the display of the banners and inflatable rat at issue here do not violate Section 8(b)(4)(ii)(B) of the National Labor Relations Act, and that the complaint should be dismissed. I believe that this outcome is dictated by the Boards decisions in [Carpenters Local 1506 (Eliason & Knuth of Arizona), 355 NLRB 797 (2010), and Sheet Metal Workers Local 15 (Brandon Regional Medical Center), 356 NLRB 1290 (2011)], which held that such displays, under analogous circumstances, did not violate the Acts secondary boycott provisions. The Board must follow its own precedents, and those precedents are directly applicable in this case.

In a separate concurrence, Members Kaplan and Ring agreed that dismissal was warranted to avoid First Amendment complications.

Congress enacted Section 8(b)(4) to protect neutral employers from being enmeshed in labor disputes not their own. . . . As important as this protection of neutral employers is, however, the Supreme Court has made clear that enforcement of the Acts proscriptions of secondary activity can conflict with First Amendment rights. Decades of binding Supreme Court precedent direct us on where the line must be drawn between constitutionally protected persuasion and expressive activity, on the one hand, and threats, coercion, and restraint rightly subject to interdiction. In our view, this precedent compels the conclusion that the rat-and-banner display at issue here does not fall within the ambit of Section 8(b)(4)s prohibitions. Accordingly, we concur in dismissing the complaint.

Member Emanuel, however, would have found a violation.

My colleagues, by affirming Brandon and Eliason & Knuth, ensure that displays of banners and giant, inflatable rats directed at neutral employers will be deemed lawful, including in this case. Such coercive secondary conduct will predictably proliferate, but todays decision leaves targeted neutral employers without recourse. Such a result cannot be squared with the Boards obligation to defuse and channel industrial strife toward legitimate conduct under the Act. To the extent Chairman McFerran deems Brandon and Eliason & Knuth as setting forth an immutable Constitutional line, I respectfully disagree. . . . Board Members Schaumber and Hayes, who vigorously dissented in Eliason & Knuth, aptly predicted that the Boards approach in this area substantially augments union power, upsets the balance Congress sought to achieve, and, at a time of enormous economic distress and uncertainty, invites a dramatic increase in secondary boycott activity. . . . This prediction is no less true today than when made a decade ago. Aggrieved neutral employers will continue to petition the Board seeking relief from secondary coercion. The Boards response today is to state, in effect, too bad.

Read more from the original source:
Scabby the Rat May Live, Says the NLRB | Arent Fox - JDSupra - JD Supra

Like Howard Beale, the angry TV executive in the film Network, Senator Amy Klobuchar is mad and shes not going to take it anymore. She is fed up with Facebooks failure to control the spread of health misinformation on its social network. Last week, she introduced a bill to do something about it. Under her proposal, Facebook will lose its immunity from lawsuits under Section 230 of the Communications Decency Act if it algorithmically promotes health misinformation, as defined by the Department of Health and Human Services (HHS), during a health crisis.

It is vital to understand that Klobuchars proposal does not make it illegal for Facebook or any other tech company to distribute health misinformation on their systems. Under the bill, HHS would be authorized to define what counts as health misinformation, but the bill would not make it a violation of law to distribute material meeting that definition. Instead, she proposes that if an underlying law makes it illegal to distribute heath misinformation, then a lawsuit against Facebook or any other company could proceed by alleging violation of that law. Previously, Facebook and other tech companies would have had immunity from any such lawsuit under Section 230 of the Communications Decency Act.

Of course, there is no such underlying law that bans the distribution of health misinformation. It is perfectly legal to distribute health misinformation today, and it will continue to be legal to distribute it if the bill were to become law tomorrow. If there were an underlying law making the distribution of health misinformation illegal, a lawsuit against Fox News alleging violation of this law would have been filed a long time ago. But no such lawsuit against Fox has materialized because there is no cause of action against a media company for reportedly distributing health misinformation. If Senator Klobuchars bill became law, neither Facebook nor any other tech company would have anything to fear. Legally, the proposed law is an empty gesture.

So, whats going on? In policy terms, this is an effort to shame Facebook into doing more to suppress dangerous misinformation. Senator Klobuchar is also making a political point. Like President Biden, she is seeking to convince the progressive elements of the Democratic base that this Administration and Congress are on board for their tech regulatory agenda. It is part of the same signaling that made Lina Khan head of the Federal Trade Commission and Jonathan Kanter the nominee to lead the Antitrust Division.

The Klobuchar bill could have gone further. It could have created a new cause of action making it illegal for any person to distribute, facilitate, or promote the distribution of health misinformation, as defined by HHS, during a medical crisis, as also defined by HHS. Creating a new cause of action is what Congress did when it created an exception from Section 230 immunity for facilitating or promoting sex trafficking.

This new cause of action would have given teeth to the bills removal of Section 230 immunity. It also would have had the advantage of applying to traditional media as well as online platforms.

But that approach would have created First Amendment issues. The distinction between publicly airing a legitimate scientific disagreement about the effects of vaccines and conducting a willful disinformation campaign to undermine public health is razor thin. Do we really want a government agency to define that line between scientific truth and falsity in a way that has legal consequences?

If a bill containing such a new cause of action ever passed into law, it would prompt what is called strict scrutiny, a constitutional challenge alleging that such a content-based restriction on speech was not narrowly tailored to achieve a compelling government interest. As the well-known legal adage has it, this kind of First Amendment scrutiny is strict in theory, but fatal in fact. Under existing First Amendment jurisprudence, the courts would almost certainly reject such a measure as unconstitutional.

Do we really want a government agency to define that line between scientific truth and falsity in a way that has legal consequences?

What can be done about health misinformation then? Facebooks reaction to the Klobuchar bill recognizes that clarification on questions about health misinformation would be helpful. But crafting a good health misinformation policy is difficult. If the Biden Administration or members of Congress had any good regulatory ideas to reduce the spread of misinformation, we would have heard about them by now. Outsiders suggest various techniques such as slowing the velocity of new or suspect information in the hopes of reducing the reach of misinformation. But no one really knows what works, largely because the social companies have all the information and refuse to share it with outsiders. Perhaps a way forward would be legislating transparency requirement to let regulators and outside researchers study how well the companies are doing in combatting misinformation through content moderation and other initiatives.

Such slow accumulation of public knowledge through transparency might point the way to an effective strategy. It is not a cure for todays misinformation about COVID 19. But perhaps policymakers should be aiming for a longer-term fix that puts in place institutional mechanisms to regulate the conduct of social media companies in the public interest. Substantially more transparency about what they are doing to protect the public from health misinformation would be one element of these public interest duties.

Facebook is a general, unrestricted donor to the Brookings Institution. The findings, interpretations, and conclusions posted in this piece are solely those of the author and not influenced by any donation.

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Senator Amy Klobuchar seeks to quell health misinformation on social media - Brookings Institution

On the very last day of its term, the U.S. Supreme Court announced it will hear a major educational choice case, the Institute for Justices tenth trip to the Supreme Court since its founding. (I discussed this case with Philanthropy Roundtable Vice President of Strategy and Programs, Debi Ghate, and Pacific Legal Foundation President, Steven Anderson, during the Roundtables April 2021webinar, Protecting Our Individual Rights: What Should the Supreme Court Weigh in On?)

In Carson v. Makin, two Maine families, represented by IJ, are fighting to send their children to the schools their families choosein this instance, religious schoolsunder Maines tuitioning system, the second-oldest educational choice program in the country.Since 1873, this system has paid parents in towns too small to support a public school to send their children to a school of their choicepublic or private. For more than a century, that included religious schools. But in 1980, Maine's attorney general released a flawed legal opinion that overrode parental choice and excluded religious schools from tuitioning.

That opinion was wrong then and even more so now. Last year, in another case litigated by IJ, the U.S. Supreme Court struck down a similar ban on private religious schools from a Montana choice program as a violation of the First Amendment. As Chief Justice John Roberts wrote for the majority in Espinoza v. Montana Department of Revenue, "A state need not subsidize private education. But once a state decides to do so, it cannot disqualify some private schools solely because they are religious."

Despite this decision, just a few months after Espinozawas handed down, the U.S. Court of Appeals for the First Circuit upheld the exclusion of religious schools from Maine's tuitioning program. In its majority opinion in Espinoza, the Supreme Court held that Montana discriminated based on the religious status of a school and noted that it would save for another day the question of discrimination based on religious use. The First Circuit latched on to that slightly ambiguous language in Espinozaand ruled that while disqualifying a school based on its religious "status" was unconstitutional, it was perfectly permissible to discriminate based on religious "use," i.e. prohibit parents from choosing schools with religious curricula.

Note that the court in Espinozadid not rule that religious use discrimination was constitutional. Only that it need not decide the issue at the present time. But unless its overturned, the First Circuit's decision on the status/use issue could be employed by other courts and interfere with parents nationwide in exercising their constitutional right to educational choice. The court in the Maine case now has the opportunity to resolve this ambiguity once and for all.

As the pandemic has shown, the need for alternatives to public schooling has never been greater. Ensuring that families have the right to choose the best education for their children is vital to a free society.Since our founding nearly 30 years ago, IJ has been in court every day defending the constitutionality of educational choice. We have won a series of cases at the U.S. Supreme Court and in state supreme courts systematically removing legal barriers to parents choosing the best schools for the education of their children.

Thankfully,Espinozaalong with deep dissatisfaction with the public school system status quo has led to an explosion of interest in choice, with over 15 states passing new or expanded programs in the last year alone. A victory in Carsonwill only accelerate this very encouraging trend.

Scott Bullock is the president and general counsel at the Institute for Justice, a nonprofit public interest law firm dedicated to advancing liberty.

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Supreme Court Will Hear Institute for Justice and Ed Choice Case Seeking More Educational Options for Maine Families and Children - Philanthropy...

As part of 101.9 FM WDETs Book Club,were invitingthe Detroit region to examine and discuss the textthat impacts every resident of the United States: The Constitution. Whether youre revisiting the documents or reading them for the first time,join us in reading alongand engaging in civil conversations with yourcommunity.

Get your free pocket Constitution

If you take a look at the long history of popular music, it becomes pretty clear that the will of the people wont be stifled easily. Time and time when people try to take rights away, artists speak up loudly and the people embrace theirmessages.

Over the course of the summer as WDET explores the context and significance of the Constitution, CultureShifts Rob Reinhart will be highlighting musical suggestions for celebrating our rights, specifically, the Bill ofRights.

Well start at the beginning: The First Amendment. Especially significant for artists, the First Amendment guarantees the freedoms of speech, religion, press, assembly and petition. The amendment provides the ability for artists to express themselves as theywish.

Click the audio player above to hear Robs picks for songs representing the five freedoms outlined in the FirstAmendment.

Inclusive, robust conversations like the ones WDET is conducting around the Constitution are made possible because of your support. Please make a gift today.

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Songs Celebrating the Five Freedoms of the First Amendment - WDET

Our question this week comes from a listener who asks: Under Article V of the U.S. Constitution, do the states need Congresss permission to hold a convention to propose constitutional amendments, or was this originally proposed by the Framers as a way to bypass Congress in order to amend the Constitution?

Do you have a question for the Civics 101 team? Submit it here!

Article V of the U.S. Constitution lays out the amendment process for altering our governmental structure. Its a product of two systems: checks and balances and federalism. The former is an arrangement of counterbalancing influences preventing all power from residing in one branch of government, and the latter is a structure that divides power between the national and state governments. As such, the answer is, no, the states dont need Congresss permission to apply for and hold a convention to propose constitutional amendments. Rather, this was included by the Framers as a way for the states to bypass Congress in the amendment process.

To explain this in more detail, lets start by taking a look at Article V. There are two steps to amend the Constitution. The first step, proposal, can be done one of two ways. Congress can propose amendments when two-thirds of both houses deem it necessary, or the states can propose amendments when two-thirds of the state legislatures apply for and Congress calls a convention for that purpose.

Once proposed, the next step is ratification. Congress chooses whether ratification should be considered by state legislatures or by state conventions created for that purpose. Three-fourths of the states, whether as legislatures or conventions, must ratify an amendment in order for it to become part of the Constitution. The Twenty-First Amendment repealing prohibition remains the only one that was ratified by conventions in three-fourths of the states.

The listeners question focuses on the first step. The text of Article V states, on the Application of the Legislatures of two thirds of the several States, [Congress] shall call a Convention for proposing Amendments. Lets call this an Article V convention.

Interestingly, this type of convention has never been called! All 27 amendments to the Constitution, and thousands of others that died during the ratification process, were proposed by two-thirds of both houses of Congress. Today, 34 of the 50 state legislatures would need to apply in order for Congress to call a constitutional convention.

The Article V convention is a way for the states to bypass Congress. When two-thirds of the state legislatures apply for a convention, Congress is constitutionally required to call it. In Federalist No. 85, Alexander Hamilton wrote, The words of this article are peremptory. The Congress shall call a convention. Nothing in this particular is left to the discretion of that body. In other words, the states dont need Congresss permission. Congress doesnt get to decide whether the states should or shouldnt hold an Article V convention; Congress actually doesnt have any say in the matter besides merely calling the convention when two-thirds of the state legislatures apply.

Once called, the Article V convention can propose amendments that are then sent to the states for ratification. By creating a process for the states to propose amendments without Congresss permission, the Framers created a way to check and balance Congresss power over the amendment process. Moreover, the Framers wanted the states to retain a substantial amount of power under the Constitution, so granting them the shared power of proposing amendments was logical under their federalist design.

Amendments proposed by the Article V convention are also not subject to Congresss approval. There are conceivably many constitutional amendments that could affect Congress but, no matter how popular, might not be in Congresss interest to propose. The Framers knew there should be another way to formally propose amendments to the Constitution when Congress drags its feet.

Lets use the example of congressional term limits. Getting two-thirds of the House of Representatives and the Senate to propose a constitutional amendment establishing term limits for themselves and future lawmakers seems unlikely. So, if a congressional term limits amendment was popular enough, at least two-thirds of the states could go around Congress, apply for an Article V convention to propose this amendment, and send it to the states for ratification. If three-fourths of the states approve, it would become the law of the land without Congresss permission or support.

See original here:
Ask Civics 101: Do The States Need Congress's Permission To Hold A Constitutional Convention? - New Hampshire Public Radio

ShowBiz Minute: Cena, Jolie, Pooh

Actor John Cena faces backlash in China over Taiwan comment; Angelina Jolie says judge in Pitt divorce won't let children testify; "Winnie the Pooh" to bring friends to New York stage this fall in new musical. (May 26)

AP

The long-delayed celebrity divorce of Angelina Jolie and Brad Pitt entered a new stage of complications Friday when their big-name legal teams went before a California appellate court to argue about Jolie's bid to dump their private judge and start over on their nearly five-year-old custody battle.

There was no immediate decision from the three-justicepanel following more than an hour of back-and-forth between power lawyers Robert Olsonfor Jolieand Ted Boutrousfor Pitt.

Jolie's lawyer said Judge JohnOuderkirk, the judge who married Jolie and Pitt in 2014, who was picked by both stars to preside as a paid private judge over their 2016divorce, should now be dismissed because he failed to fully disclose in a timely manner professional links to one of Pitt's lawyers.

"If you're going to play the role of a paid private judge you have to play by the rules and the rules are very clear, they requirefull transparency," Olson said. "Matters that should have been disclosed were not disclosed....If rules have no consequences they are empty."

Pitt's lawyer arguedthat Jolie is engagingin a stalling tacticbecause she doesn't like Ouderkirk's earlier decisions in the case, including awarding temporary joint custody of their children to Pitt.

IfOuderkirk is dismissed, his previous rulings in the case could be voided, a new judge would be appointed and the case would be slowed down even further, thus allowing more of the couple's six childrento reach adulthood (son Maddox is 19), at which point they can make their own choices about a relationship with their father.

Their other children are Pax, 17, Zahara, 16, Shiloh, 15, and twins Vivienne and Knox, 12.

"This is the kind of game-playing that the courts condemn," said Boutrous, a First Amendment lawyer who recently persuaded a New York judge to allow a tea-spilling book about former President Donald Trump by his niece to be published over his objections.

Boutrous insisted that Jolie,"a sophisticated person with sophisticated lawyers," has known all along about matters requiring disclosureby Ouderkirk but did not raise objections until she began losing in his court.

"These kids are aging, some are already adults, others are reaching adulthood, and to allow this delaying tactic is extremely unjust and extremely unfair" to them and to Pitt, Boutrous said.

The lawyers and the justices engaged indense legal arguments about precedents and earlier decisions on similar cases, and occasionally wandered into questions about whether California should even allow private judges to be compensated.

Jolie sought Ouderkirk's dismissal in August 2020,alleging he was not impartial due to professional links between him and Pitt's lawyers. She lost that bid in Superior Court in November. The hearing Friday was to hear her appeal of that decision.

Ordinarily, an appellate courtdecision could be expected in about a month. As the hearing closed, Olsonpleaded for the court's decision to be made public.

Divorce cases in California, especially celebrity cases and those conducted under the aegis of a private judge, often take place behind closed doors and are not accessible online, even before the COVID-19 pandemic closed courthouses. Much of the Jolie/Pitt divorce has been closed to the public.

The appellate proceeding before theSecond District Court of Appeal in Los Angeles was regarding the judge, not the divorce, so it was live-streamed.

Christopher Melcher, a Los Angeles family law attorney not involved in the Jolie/Pitt case, who watched the entire proceeding, told USA TODAY that disqualifying a judge is rarely successful.

"It's viewed as a last-ditch measure," he said. "Questioning a judges integrity is a serious accusation, which carries the risk of alienating the person who will decide custody and other issues. Angelina must have decided that was a risk worth taking."

He says it's significant that Jolie repeatedly agreed to the reappointment of Ouderkirk each time his assignment was coming to end, and it wasonly after he criticized her in court that she cried foul.

Olson said Friday that Jolie approved the last reappointment of the judge without full knowledge of Ouderkirk'sdisclosure of his latest business links to Pitt's legal team. Olson also asked for a stay so that Ouderkirk does not issue a final custody ruling before the appellate panel issues its ownruling.

Jolie's lawyer's brief in the case declaredthat even if she loses at the appellate level, she will keep fighting Pitt and the custody order.

The brief filed by Jolie's lawyers ahead of Friday's hearing claimed "prejudicial legal error" on Ouderkirk's part, includingthe judge's refusal to hear testimony from the younger children about their views on custody. Jolie's team also argued the actress was denied "a fair trial" because the judge improperlyexcluded hearing "evidence relevant to the childrens health, safety, and welfare."

Read more:
Jolie and Pitt's lawyers face off over her bid to dump their private judge in divorce case - USA TODAY

Bart Adams

Now that weve once again celebrated our nations independence, lets look at one of our most fundamental rights: Freedom of speech.

Its tempting to take this right for granted, but it is under attack in a big way.

Specifically, there is growing acceptance of the idea that if speech hurts someones feelings then it must be suppressed.

Right now in Finland, for example, a Christian member of Parliament faces six years in prison for hate speech because she shared her views on homosexuality.

I dont think Ive been guilty of threatening, slandering [or] disparaging any population group, she responded. These [statements] are all about what the Bible teaches about marriage and sexuality.

In Canada, a 2017 law (Bill C-16) could send someone to jail for refusing to use the pronoun preferred by a transsexual.

It could happen, lawyer Jared Brown told the Canadian Broadcasting Corporation when asked about the possibility of jail time for violating the law. Is it likely to happen? I dont think so. But, my opinion on whether or not thats likely has a lot to do with the particular case that youre looking at.

Even if the possibility were slight, its abhorrent to imagine someone going to jail for declining to engage in compelled speech.

Sadly, a 2017 poll by the libertarian Cato Institute found that 51 percent of Democrats favor such a law here.

Fortunately, we have the First Amendment, which gives Americans more confidence in our right to speak freely, though much of the world doesnt understand it.

Look what Prince Harry, one of our newer residents, had to say back in May: Ive got so much I want to say about the First Amendment; I still dont understand it, but it is bonkers.

Thats fine; he doesnt have to understand our liberty. After all, when our Continental soldiers fought and died for that liberty, they did so to free us from the unjust rule of Prince Harrys relative, George III.

But another George Orwell , whose work offers great insight on the dangers of unchecked government power, said this: If liberty means anything at all, it means the right to tell people what they do not want to hear.

Another George Washington said, If freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter.

In the Internet age, protecting free speech is more complicated because its not just governments doing the censoring, its also big-tech giants like Google, Facebook and Twitter.

As a Wall Street Journal op-ed stated earlier this year, Conventional wisdom holds that technology companies are free to regulate content because they are private, and the First Amendment protects only against government censorship. That view is wrong: Google, Facebook and Twitter should be treated as state actors under existing legal doctrines. Using a combination of statutory inducements and regulatory threats, Congress has co-opted Silicon Valley to do through the back door what government cannot directly accomplish under the Constitution.

And while conservatives justifiably complain about big-tech censorship, all are threatened.

As that same article (published while Donald Trump was still in office) pointed out, Liberals should worry too. If big tech can shut down the president, what stops them from doing the same to Joe Biden if he backs antitrust suits against social-media companies?

In short, lets remember what the late Supreme Court Justice William O. Douglas warned: Restriction of free thought and free speech is the most dangerous of all subversions. It is the one un-American act that could most easily defeat us.

Contact Bart Adams at badams@mydailyrecord.com.

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First Amendment is not 'bonkers' - Mount Olive Tribune

The recent Supreme Court rulings on voting rights and election transparency have once again highlighted the enormous power the judicial branch has over the country's electoral process.

Last week, the court's conservative majority upheld a pair of voting laws that tightened the rules in Arizona. In a separate ruling, the justices struck down California's law requiring charitable nonprofits to privately disclose their top donors to the state attorney general. Both cases could have larger implications for the future of American democracy.

Throughout history, the Supreme Court has played an integral role in shaping how voters are represented, ballots are cast and elections are financed. Here are seven landmark cases from the last six decades:

In 1961, a group of Alabama voters challenged the apportionment of the state Legislature, arguing it violated the equal protection clause of the Fourteenth Amendment. At the time, Alabama required each county to have at least one representative and allowed as many senators as there were senatorial districts. This led to unequal representation due to large population discrepancies across the districts.

The Supreme Court ruled that legislative districts within a state must have substantially equal representation for all citizens. This ruling has ensured districts maintain even representation when redrawn each decade during redistricting.

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In an attempt to curb political corruption following the Watergate scandal, Congress established limits on election spending through the 1971 Federal Election Campaign Act. This case challenged whether those restrictions violated the First Amendment.

In 1976, the Supreme Court arrived at two conclusions with this case, making a distinction between contributions and expenditures. First, the justices determined that a limit on how much an individual can donate to political campaigns and candidates did not violate the First Amendment because it "served the government's interest in safeguarding the integrity of elections." However, the court also found that limits on expenditures by campaigns and candidates did violate the freedoms of speech and association because this practice does not necessarily enhance the potential for corruption in elections.

Also in this ruling, the court overturned FECA's disclosure requirement for independent expenditures made for the purpose of influencing federal elections. This established the two types of political advertising seen today: express advocacy and issue advocacy. Express advocacy ads require disclosure because they explicitly support or oppose a candidate. Issue advocacy ads, on the other hand, mention broad political topics, but not campaigns, and so disclosure is not required. However, there can be ambiguity between the two, leading to calls for more transparency of the wealthy special interests influencing elections.

Following the 1990 census, Georgia lawmakers redrew the state's election maps to create a third majority-Black district. However, the new district was so severely gerrymandered that it packed Atlanta's Black neighborhoods in with other Black communities 260 miles away along the Atlantic coast.

Voters in this distorted district challenged the map, arguing it was a racial gerrymander in violation with the equal protection clause of the Fourteenth Amendment. The Supreme Court ruled that the district did constitute a racial gerrymander. In some instances, the court held, a reapportionment plan may be so irregular that it cannot be rationally understood as anything but an effort to racially segregate voters.

The 2002 Bipartisan Campaign Reform Act barred electioneering communication advertising run on broadcast, cable or satellite services and mentioning a candidate within 60 days of a general election and 30 days of a primary. Citizens United, a conservative advocacy nonprofit, challenged this rule after its movie criticizing then-presidential candidate Hillary Clinton was blocked by the Federal Election Commission for airing too close to an election.

The Supreme Court struck down this provision of BCRA, ruling that corporate funding of independent political broadcasts cannot be restricted under the First Amendment. However, the court upheld the requirement that electioneering communication be subject to disclaimers and disclosure of sponsors.

More than a decade after the ruling, Citizens United v. FEC is often labeled as the ultimate antagonist of the democracy reform movement. Its harshest critics use the case as shorthand for a campaign financing system that gives a lopsided political advantage to the wealthiest individuals, corporations and other entities. But proponents, mostly conservatives, still hail the ruling as a major victory for free speech and political expression.

A common misconception is that the Citizens United ruling gave rise to super PACs. But it was actually the D.C. Circuit Court of Appeals decision the same year in SpeechNow.org v. FEC.

In 2013, the Supreme Court struck down a key provision of the 1965 Voting Rights Act, known as preclearance. Prior to this ruling, certain states and counties with histories of racial discrimination had to get prior federal approval of their proposed changes to voting procedures. But the court found that this constraint, while appropriate in the past, was no longer necessary and placed an unconstitutional burden on states.

Since then, voting rights advocates claim the lack of preclearance has allowed state lawmakers to significantly roll back voting access. But others argue what remains of the Voting Rights Act is enough to protect against discriminatory laws.

The Bipartisan Campaign Reform Act set a cap on the total dollars an individual could give to candidates, political parties and political action committees in a two-year election cycle. The law was intended to curb political corruption, but a decade after enactment, it was challenged for violating the First Amendment.

The Supreme Court ruled in 2014 that the aggregate limit failed to prevent corruption or meet the "rigorous" standard of review set by previous campaign finance cases, and therefore it was unconstitutional. There are still limits on how much an individual can give to a single candidate, party or committee, though.

This ruling opened up opportunities for wealthy donors to give to as many political entities as they want. It also led to the creation of joint fundraising committees partnerships in which campaigns and party committees collect one large check from each donor and split the proceeds.

Two years ago, the Supreme Court ruled that cases involving partisan gerrymandering were not justiciable because the issue falls outside the purview of federal courts. The case was brought to the court after North Carolina's maps were challenged for constituting an illegal partisan gerrymander.

This ruling was seen as a massive setback for anti-gerrymandering advocates who had hoped the high court would intervene in extreme gerrymandering cases, such as the one in North Carolina. Now, it will be left up to state courts to decide when gerrymandering goes too far.

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7 Supreme Court cases that have shaped American elections - The Fulcrum

Political and commercial photographer Greg Hauenstein said Iowans need to throw out items that show the American flag, but having those is not a crime under the new Back the Blue Act.

PolitiFact Iowa is a project of The Daily Iowans Ethics & Politics Initiative and PolitiFact to help you find the truth in politics.

Edited by Rachel Schilke, Robert Read, and Lyle Muller

If your time is short

After Gov. Kim Reynolds signed a bill on June 17 that creates harsher penalties for protestors into law, Greg Hauenstein a political and commercial photographer took to Twitter to critique a part of the law outlining punishment for showing disrespect to the United States flag.

Under the Back the Blue Act that @KimReynoldsIA signed today you cannot intentionally cut up or alter or intentionally make physically unclean an American flag, Hauenstein tweeted. So throw out those towels and swimsuits, ladies and germs or youre a criminal!

Were the people sporting the American flag on articles of clothing this Fourth of July weekend committing a simple misdemeanor under Iowas law? We decided to look into it.

In Senate File 342, also known as the Back the Blue Act, Section 46 amends Iowa Code 2021 with a list of actions defined as a simple misdemeanor. The sixth item on the list states that someone commits a simple misdemeanor if they knowingly and publicly use the flag of the United States in such a manner as to show disrespect for the flag as a symbol of the United States, with the intent or reasonable expectation that such use will provoke or encourage another to commit trespass or assault.

The subsection defines showing disrespect as defacing, defiling, mutilating, or trampling the flag, which Hauensteins tweet implied would include the process of making and wearing the image of the flag.

However, the subsection defines flag as a piece of woven cloth or other material designed to be flown from a pole or mast.

A previous fact check found that the thin blue line flag does not violate the U.S. Flag Code because it does not fit the definition of a U.S. flag.

The image of the American flag on clothing does not meet SF 342s definition of a flag, and therefore the defacing, defiling, mutilating, or trampling of that clothing does not qualify as a simple misdemeanor, which carries a penalty of a fine ranging from $105 to $855. The court also may order a maximum of 30 days in jail, according to Iowa Code.

Craig Robinson, the founder and editor-in-chief of The Iowa Republican, responded to Hauensteins tweet, pointing out that towels and swimsuits arent made of actual American flags, to which Hauenstein responded he was being facetious.

I was being facetious, thats just my style, he confirmed in a conversation with PolitiFact Iowa.

Whether the Iowa law withstands constitutional challenges is another question.

Gene Policinski, chief operating officer and senior fellow for the First Amendment of the Freedom Forum Institute, said acts that would be considered a simple misdemeanor under SF 342 are protected by the First Amendment. In the 1989 Supreme Court case Texas v. Johnson, justices ruled 5-4 that flag burning constitutes symbolic speech protected under the First Amendment.

I think the fundamental philosophy of these laws isnt there, Policinski said. Theyre certainly at odds with court decisions; they are impractical to enforce.

Our Ruling

The Back the Blue Act creates punishment for showing disrespect for the U.S. flag, but the image of the flag on clothing or other fabric that is not used to make the flag does not qualify as a flag under Iowa law.

Additionally, desecration of the flag is protected under the First Amendment, according to the 1989 Supreme Court case Texas v. Johnson.

Hauenstein said that he was being facetious in his critique of the new Iowa law.

We rate the claim in the tweet to be False.

Sources

Senate File 342, signed into law June 17, 2021

Greg Hauensteins tweet, June 17, 2021

Greg Hauenstein interview, July 5, 2021

Gene Policinski interview, June 25, 2021 and July 5, 2021

Iowa Code 2021, Chapter 723

Iowa Code 2021, Disorderly Conduct, 723.4

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Florida governor Ron DeSantis has signed into law a restriction on social media companies ability to ban candidates for state offices and news outlets, and in doing so offered a direct challenge to those companies perceived free speech rights. The law is almost certain to be challenged in court as both unconstitutional and in direct conflict with federal rules.

The law, Florida Senate Bill 7072, provides several new checks on tech and social media companies. Among other things:

The law establishes rules affecting these companies moderation practices; that much is clear. But whether doing so amounts to censorship actual government censorship, not the general concept of limitation frequently associated with the word is an open question, if a somewhat obvious one, that will likely be forced by legal action against SB 7072.

While there is a great deal of circumstantial precedent and analysis, the problem of are moderation practices of social media companies protected by the First Amendment is as yet unsettled. Legal scholars and existing cases fall strongly on the side of yes, but there is no single definitive precedent that Facebook or Twitter can point to.

The First Amendment argument starts with the idea that although social media are very unlike newspapers or book publishers, they are protected in much the same way by the Constitution from government interference. Free speech is a term that is interpreted extremely liberally, but if a company spending money is considered a protected expression of ideas, its not a stretch to suggest that same company applying a policy of hosting or not hosting content should be as well. If it is, then the government is prohibited from interfering with it beyond very narrow definitions of unprotected speech (think shouting fire in a crowded theater). That would sink Floridas law on constitutional grounds.

The other conflict is with federal law, specifically the much-discussed Section 230, which protects companies from being liable for content they publish (i.e. the creator is responsible instead), and also for the choice to take down content via rules of their own choice. As the laws co-author Senator Ron Wyden (D-OR) has put it, this gives those companies both a shield and a sword with which to do battle against risky speech on their platforms.

But SB 7072 removes both sword and shield: it would limit who can be moderated, and also creates a novel cause for legal action against the companies for their remaining moderation practices.

Federal and state law are often in disagreement, and there is no handbook for how to reconcile them. On one hand, witness raids of state-legalized marijuana shops and farms by federal authorities. On the other, observe how strong consumer protection laws at the state level arent preempted by weaker federal ones because to do so would put people at risk.

On the matter of Section 230 its not straightforward who is protecting whom. Floridas current state government claims that it is protecting real Floridians against the Silicon Valley elites. But no doubt those elites (and let us be candid that is exactly what they are) will point out that in fact this is a clear-cut case of government overreach, censorship in the literal sense.

These strong legal objections will inform the inevitable lawsuits by the companies affected, which will probably be filed ahead of the law taking effect and aim to have it overturned.

Interestingly, two companies that will not be affected by the law are two of the biggest, most uncompromising corporations in the world: Disney and Comcast. Why, you ask? Because the law has a special exemption for any company that owns and operates a theme park or entertainment complex of a certain size.

Thats right, theres a Mouse-shaped hole in this law and Comcast, which owns Universal Studios, just happens to fit through as well. Notably this was added in an amendment, suggesting two of the largest employers in the state were unhappy at the idea of new liabilities for any of their digital properties.

This naked pandering to local corporate donors puts proponents of this law at something of an ethical disadvantage in their righteous battle against the elites, but favor may be moot in a few months time when the legal challenges, probably being drafted at this moment, call for an injunction against SB 7072.

Excerpt from:
Floridas ban on bans will test First Amendment rights of social media companies - TechCrunch