Category Archives: First Amendment

The appropriate reaction to criticism of constitutionally protected rights by a member of the British royal family is certainly an eyeroll. After all, we fought a revolution to make sure British aristocrats would no longer have a say over the freedoms Americans exercise, so the reminder that we dodged a bullet on that front is no surprise. What is more concerning, though, is that opposition to free-wheeling speech is more widely shared among people who are in a position to impose a disgruntled prince's vision of good policy on the world at large.

Prince Harry's comments came on the May 13 episode of actor Dax Shepard's Armchair Expert podcast. As the Hollywood- and Hollywood-adjacent celebrities commiserated about the awfulness of the paparazzi and their behavior, the wayward prince mused about the legal framework that allows intrusions into the private lives of famous people.

[42:50] I don't want to start sort of going down the First Amendment route because that's a huge subject and one which I don't understand because I've only been here for a short period of time. But you can find a loophole in anything. And you can capitalize or exploit what's not said rather than uphold what is said.If there's an ideology or you want to spread hate. Laws were created to protect people, right? That's how I see it.

[44:50] I've got so much I want to say about the First Amendment as I still don't understand it. But it is bonkers.

As difficult as it is to sympathize with wealthy people who make a living from high-profile lives whining about the folks who provide publicity, there's not much peril in them either. Prince Harry, after all, left the life of a human poodle in the United Kingdom to take on the role of a less-responsible show dog in the United States. He's no danger to our liberty, though he is a remarkably un-self-aware reminder that his ancestors once did pose a threat with similar sniffy views about "bonkers" freedoms.

But Prince Harry's old-school dismissal of free speech protections finds its echo among equally sniffy modern legal theorists who agree with inconvenienced aristocrats that the First Amendment is a Very Bad Thing and that speech should be subject to greater restrictions.

"Instead of thinking about content moderation through an individualistic lens typical of constitutional jurisprudence, platforms, regulators, and the public at large need to recognize that the First Amendmentinflected approach to online speech governance that dominated the early internet no longer holds," writes Harvard Law School lecturer Evelyn Douek in an April 2021 Columbia Law Review article. "Instead, platforms are now firmly in the business of balancing societal interests and choosing between error costs on a systemic basis."

The catalyst for this shift away from First Amendment-style speech protection by the tech giants was COVID-19, claims the Australian academic, who approves of the transformation. She sees lasting effects beyond social media. "The state of emergency that platforms invoked during the COVID-19 pandemic is subsiding, and lawmakers are poised to transform the regulatory landscape," Douek adds.

Douek cites a pre-pandemic paper by Harvard Law School's Jonathan Zittrain who unintentionally anticipated the impact of COVID-19 when he observed that the treatment of speech is moving to a "public health framework [that] is much more geared around risks and benefits than around individual rights."

Among the lawmakers treating speech as a health threat are French President Emmanuel Macron and New Zealand Prime Minister Jacinda Ardern, who have joined together with other political and tech leaders to demand tighter regulation of online speech. New Zealand's prime minister, in particular, wants digital media companies to implement "ethical algorithms" to steer people away from material of which the authorities disapprove and toward content that they prefer.

"Let's have that conversation around the ethical use of algorithms, and how they can use be used in a positive way and for positive interventions," Ardern last week told a conference of participants in Christchurch Call, which advocates for greater control over online content.

Ardern faces opposition at home, where the libertarian ACT party, which won 10 of 120 seats in the October 2020 election, makes free speech a major part of its platform and its opposition to the governing Labour Party. That was already a demanding job in a country that has an official national censorship office, and hasn't become easier in a pandemic-shocked world grown accustomed to "emergency" incursions into individual rights.

But Christchurch Call, co-founded by the governments of France and New Zealand, wins a friendly reception elsewhere. The European Union has long been on-board with speech controls and had no objection to endorsing the effort. Over 50 governments and most of the big tech companies have also signed on.

"YouTube is committed to the #ChristchurchCall," CEO Susan Wojcicki tweeted May 14. "We continue to strengthen our policies, improve transparency, and restrict borderline content. We look forward to continuing to work with the Call community."

Also endorsing the Christchurch Call is the government of the United States, land of "bonkers" constitutional protections for personal freedom.

"The United States endorses the Christchurch Call to Action to Eliminate Terrorist and Violent Extremist Content Online, formally joining those working together under the rubric of the Call to prevent terrorists and violent extremists from exploiting the Internet," the U.S. State Department announced on May 7. The statement went on to promise that "the United States will not take steps that would violate the freedoms of speech and association protected by the First Amendment," but that's going to be hard to square with a mandate for "ethical algorithms" intended to nudge people away from ideas frowned on by officialdom.

But a vision of a First Amendment somehow reconciled with restrictions on speech might just be bonkers enough to win the favor of resentful celebrities and displaced royals. Prince Harry apparently has some time on his hands and could be available as a spokesman for the cause.

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Prince Harry's First Amendment Aversion Is Funny; the Governments That Agree Are Scary - Reason

Why do we have to wear face masks? The official answer changes from week to week. Its a patriotic responsibility, for Gods sake, President Biden said when asked on April 30 why he still did despite being vaccinated against Covid-19. But last week he recast mask mandates as a coercive sanction against the unvaccinated. The rule is now simple: get vaccinated or wear a mask until you do, he tweeted Thursday.

In fact, no rule had changed. The Centers for Disease Control and Prevention merely issued guidance that if youre fully vaccinated, you can resume activities without wearing a mask ... except where required by federal, state, local, tribal, or territorial laws, rules, and regulations. Within days, many states relaxed their mask edicts, and Washington followed on Monday by applying its decrees only to unvaccinated people on most federal property. But California officials said theyd stand pat until June 15, and the White House and CDC still require universal masking on public transportation and at transit hubs, including airports.

Critics argue that masking has become a form of virtue signaling. Mr. Biden reinforced that claim with his appeals to patriotism, which began during last years campaign as a rebuttal to the mask-resistant President Trump. But if wearing a mask conveys a political message, mandating it is constitutionally suspect. No official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein, Justice Robert Jackson wrote in West Virginia State Board of Education v. Barnette (1943), which held that forcing schoolchildren to salute the flag and recite the Pledge of Allegiance violated their freedom of speech.

To wear a mask in public is to affirm a viewpoint no less powerful than the Pledge of Allegiance: that Covid poses a crisis so dire as to demand unprecedented government control of our lives and a transformation of the norms of interpersonal behavior. Ubiquitous mask mandates make assent impossible to avoid except by breaking the law or staying home.

Officials would argue that they are regulating conduct, not expression, and that they are doing so to protect public health. A few months ago that defense almost certainly would have prevailed. The pandemics severity, coupled with the lack of effective means to control it, would have persuaded most judges to defer to the governments contention that the danger of infection outweighed the right to dissent or any other rights (such as bodily autonomy) that plaintiffs might assert.

The rest is here:
Face Masks and the First Amendment - The Wall Street Journal

David B. Rivkin Jr. and James Taranto argue in today's Wall Street Journal that mask mandates are "content-based limits on speech" that must be evaluated under "strict scrutiny," which likely makes them unconstitutional:

Critics argue that masking has become a form of virtue signaling. Mr. Biden reinforced that claim with his appeals to patriotism, which began during last year's campaign as a rebuttal to the mask-resistant President Trump. But if wearing a mask conveys a political message, mandating it is constitutionally suspect. "No official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein," Justice Robert Jackson wrote inWest Virginia State Board of Education v. Barnette(1943), which held that forcing schoolchildren to salute the flag and recite the Pledge of Allegiance violated their freedom of speech.

To wear a mask in public is to affirm a viewpoint no less powerful than the Pledge of Allegiance: that Covid poses a crisis so dire as to demand unprecedented government control of our lives and a transformation of the norms of interpersonal behavior. Ubiquitous mask mandates make assent impossible to avoid except by breaking the law or staying home.

The government undoubtedly has a compelling interest in preventing infectious disease. But that doesn't necessarily imply a compelling need for mask mandates. If it did, they could be justified in perpetuity. Universal masking would reduce spread of the flu, the common cold and other infections, but that has never been thought to justify mandating it except during a pandemic.

I think this analysis is mistaken. There are many plausible arguments against various kinds of mask mandates; but the First Amendment compelled-expression argument just isn't one of them.

[1.] The First Amendment of course does protect certain kinds of inherently expressive symbolic conduct (such as waving a flag, wearing an armband, burning a flag, and the like), as well as refusal to engage in such conduct (such as refusing to salute a flag). American law has long treated such inherently symbolic expression comparably to verbal expression and visual expression; I wrote about this some years ago in my Symbolic Expression and the Original Meaning of the First Amendment article. Andcontent-based limits on inherently expressive conduct are indeed subject to strict scrutiny and presumptively unconstitutional; that's what the Court held in the flagburning cases, for instance.

[2.] But inRumsfeld v. FAIR(2006), the Court made clear that this applies only to "inherently expressive" conduct:

[W]e [have] rejected the view that "conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." Instead, we have extended First Amendment protection only to conduct that is inherently expressive.

And in particular,Rumsfeldheld, a university's excluding military recruiters doesn't qualify as First-Amendment-protected symbolic expression because

An observer who sees military recruiters interviewing away from the law school has no way of knowing whether the law school is expressing its disapproval of the military, all the law school's interview rooms are full, or the military recruiters decided for reasons of their own that they would rather interview someplace else.

Likewise, an observer who sees someone not wearing a mask has no way of knowing whether the person is expressing his disapproval of mask mandates, or is vaccinated and thinks he doesn't need a mask, or just finds masks uncomfortable. And while the person might explain why he's not wearing a mask, that's not enough to turn mask-wearing into protected expression: When "[t]he expressive component of actions is not created by the conduct itself but by the speech that accompanies it," it "is not so inherently expressive that it warrants protection."

[3.] But even if not wearing a mask was seen as inherently expressive (or wearing a mask was so seen), that would only lead tointermediate scrutiny, of a sort that isn't difficult to pass. That's what the Court held inU.S. v. O'Brien (1968), which upheld a ban on burning draft cards, because such a ban was justified by the government's interest in preventing destruction of government documents. (The ban didn't apply to burning copies of draft cards.) Whenthe "governmental interest is unrelated to the suppression of free expression," intermediate scrutiny applies, and under that scrutiny it's enough if the law even modestly advances the government interest.

Masks work not because of their expressive function, but because they have some tendency to stop the spread of communicable disease (or so at least some reasonable medical experts think). Indeed, the Journal op-ed acknowledges that "Universal masking would reduce spread of the flu, the common cold and other infections"; presumably it would reduce spread of COVID-19 as well, at least in some measure. That's enough for the law to be constitutional underO'Brien(even ifRumsfelddoesn't just categorically exclude the law from First Amendment scrutiny).

And the Court drew the same distinction in striking downthe flagburning bans in Texas v. Johnson (1989) and U.S. v. Eichman (1990). There, the chief government interest was in "preserving the flag as a symbol of nationhood and national unity, and that was indeed "related to the suppression of expression," "because the State's concern with protecting the flag's symbolic meaning is implicated 'only when a person's treatment of the flag communicates some message.'" Not so from the masks, which offer the same benefits (however modest some might think them to be at this point in the epidemic) regardless of the message they communicate.

[4.] What about the argument that "Universal masking would reduce spread of the flu, the common cold and other infections, but that has never been thought to justify mandating it except during a pandemic"? That's so, but not on the grounds that masking or refusing to mask are symbolic expression protected by the First Amendment.

Universal masking may be too burdensome as to those diseases; it may cause other countervailing problems; it may be a bad idea; some might even argue that it violates some liberty of dress protected by the Ninth Amendment or some such (I don't want to opine on that, but one can imagine such an argument). But those are the proper bases for evaluating masking, not the First Amendment symbolic expression argument.

[5.] There is a separate First Amendment argument that one can make: By making it harder for people to read facial expressions, masking may make it harder for people to communicate with each other (whether by making it harder to use lip-reading as a supplement to audio communications, by making it harder to hear people, or making it harder to gauge a person's emotional reactions to a statement). In this respect, a mask mandate might be like a content-neutral limit on using sound amplification.

That might get one to some level of First Amendment scrutiny, but only intermediate scrutiny, for the reasons given above. And I think that the mandates would pass such strict scrutiny, at least at this point in the epidemic (when we're still at over 600 deaths and over 30,000 new cases per day, though thankfully a much lower rate than it was during the April-May and January-February peaks).

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The First Amendment and Mask Mandates Reason.com - Reason

Guest Opinion By Amy Kerr Hardin | May 22, 2021

Its amusing to watch folks on the far right clutch their pearls over their favorite orange leader being banned from social media, claiming its a free speech issue. They may want to Google First Amendment some time to attempt to find the elusive constitutional protection they claim. Its no surprise that those who so thoroughly misunderstand the Second Amendment might find themselves befuddled by the First the amendment that was so important, it got top billing.

Rep. Lauren Boebert (R Colorado) put her Constitutional ignorance on full display when she recently Tweeted this: I guess Facebook thinks the first amendment only applies to leftists.

Unfortunately, there are plenty of Americans across the political spectrum who are confused about what constitutes protected speech. The First Amendment applies only to government bodies, including public schools, restricting speech. Social media outlets can ban anyone from their platform. They are privately-held entities. Think of it like throwing out a disruptive customer something weve seen plenty of over the past year.

In our zeal to curtail hate speech, we sometimes forget another important aspect of the First Amendment. In a 2017 ruling, the Supreme Court found that simply saying something hateful remains protected speech. Justice Sonia Sotomayor wrote, States must prove more than the mere utterance of threatening words some level of intent is required. It must be proven to be a true threat. This is the standard prosecutors must follow when deciding to press charges. Hateful and hurtful speech rarely rises to the level of criminal recourse.

All eyes are on Traverse City Area Public Schools as they attempt to navigate the minefield of often conflicting and overlapping policies and statutes governing hate speech, electronic or not. No school district wants to be a test kitchen for constitutional law. To believe the path is clear and obvious is to misunderstand the complexities presented. These anti-bullying laws and policies are new on the books and have not been put through the kind of vigorous legal scrutiny that will eventually hone them and preferably keep them in step with the First Amendment.

There are a couple of important actions pending before the judiciary on the topic of free speech in public schools.

A case that went before the United States Supreme Court for oral arguments last month involves the use of social media and free speech. It was brought by a 14-year-old high schooler who dropped a number of precision F-bombs on her school after being bypassed for the softball team and the varsity cheer squad. Her posting occurred off-campus, but the school took disciplinary action against her when another student shared her post with a school coach.

Dubbed the mean girl case, a ruling is likely months away, but the oral arguments were illuminating as to how the high court was leaning. ACLU lawyer Witold Walczak argues that if schools can police students online speech, it will bleed over into censoring cultural, political, and religious communications. The justices expressed unease over the potential chilling effect on student free speech. Justice Samuel Alito said, Im quite concerned about the effect of this on freedom of speech. I think we need clear lines.

Comment from the high court did acknowledge that online bullying is a serious problem and might be a piece of the student speech issue. However, there is Supreme Court precedent that indicates the threats must be not only directed at the target but also credible. As to whether the courts would be willing to extend that to school policy positions remains untested for now.

Another interesting case is working its way through the federal courts. A popular white teacher was disciplined for hanging a Black Lives Matter banner outside her classroom door at Robert E. Lee High School in Jacksonville, Florida, a predominately black school, whose school colors are blue and gray Confederate colors and whose teams are named the Generals.

She did so to demonstrate that her classroom is a safe space for her students in the wake of one of them being killed by police. The district ordered her to remove the banner, claiming it violated school policy prohibiting employees from on-campus political speech. This beloved teacher refused and was subsequently reassigned to non-teaching duties.

A lawsuit was filed on her behalf by the Southern Poverty Law Center asserting the school district had violated her First Amendment rights. Though typically, public schools have measurable say over permissible employee speech, this case may be seminal to redefining some of those boundaries.

Rachel Arnow-Richman, a professor of labor law at the University of Florida, points out that a 2006 Supreme Court ruling endorsed governmental power to partially restrict public sector workers speech. However, a conflicting Florida law says that school districts are prohibited from infringing on employee Constitutional rights.

Thats not the only conflict. Richman describes the problem thusly: Thats to say, this general rule that public employees do not speak for themselves but speak for the government and lack First Amendment protections is at odds, I would say, with our societal interest in wanting teachers to have leeway to communicate and teach students about current issues, bringing to bear their expertise as educators.

Interpreting and protecting the First Amendment is fraught with uncertainty, but the least we can do as Americans is resist the temptation to morph our understanding of the Constitution to fit policy goals.

Amy Kerr Hardin is a retired banker, regionally known artist, and public-policy wonk. You can hear and learn more about the state of Michigan politics on her podcast,www.MichiganPolicast.com.

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First Amendment Confusion | Opinion | Northern Express - northernexpress.com

Recently, he took to Dax Shepards podcast Armchair Expert to put this talent on display, erm, give an interview. During the conversation, Harry called the First Amendment bonkers while simultaneously admitting he just couldnt quite wrap his head around its 45 words.

"Ive got so much I want to say about the First Amendment as I sort of understand it, but it is bonkers. I dont want to start going down the First Amendment route because thats a huge subject and one which I dont understand because Ive only been here a short time. But, you can find a loophole in anything. You can capitalize or exploit whats not said rather than uphold what is said."

Harrys remarks have of course ruffled the feathers of Americans, many of whom have pointed out the country fought a war to make sure the opinions of the British monarchy would never again have any bearing on our country or our laws.

To be fair, the ex-monarch lost his mother, Princess Diana in a media-involved incident. The press notoriously stalked her every move for years, and she ultimately died in a car wreck after being chased through the streets of Paris by paparazzi. Harrys wife has also frequently found herself the subject of the tabloids and is no darling of the press, frequently incurring disparaging headlines and invasive, embarrassing stories.

Given these factors, it is somewhat understandable (though nonetheless inexcusable) that Harry may take issue with a constitutional amendment that protects a free press. England, where free expression is deemed a qualified right, has much stricter laws on the books, which earned it a dismal 40th place on the World Press Freedom Index in 2018.

But its important to note that Harry took aim at the entirety of the First Amendment and not just the components that protect the press. His comments reveal a dangerous belief found all too often among the ruling class that the language of everyday people should be restrained to their liking. And make no mistake, this sentiment is found among American leaders as well though few are daft enough to say they dislike the First Amendment in an interview. Instead, they attack free speech with their policies.

Senator Elizabeth Warren (D, MA) recently threatened to break Amazon up so their account could not send her what she labeled snotty tweets.

On the Republican side of the aisle, Florida GOP members passed a law that would fine private, social media companies should they remove political candidates from their platforms. And Senator Josh Hawley (R, MO) has made defeating the free speech of private tech companies his number one priority, frequently working to overturn Section 230 and suggesting breaking up the companies should be on the table.

These politicians dont have to say they hate free speech, in fact they often use it as a guise to push their anti-civil liberties views under, but their policies tell you everything you need to know.

And our political leaders are not necessarily out on a political limb; increasingly the American public does not understand or fully support free speech either. A 2020 Gallup / Knight Foundation poll found that 56 percent of Americans believe in the right to freely express views on social media meaning 44 percent of those polled...dont. This is a sharp decline from only one year prior.

Ask an American if they support free speech and its unlikely youll be told no. But the application of the principle seems to be where we lose people.

While Prince Harry, some Senators, and the American people may be confused about the First Amendment, the founders were not. They saw free speech and a free press as so essential to our system that they were the first civil liberties enshrined in the Constitution.

Thomas Jefferson once wrote, No experiment can be more interesting than that we are now trying, and which we trust will end in establishing the fact that man may be governed by reason and truth. Our first object should therefore be to leave open to him all the avenues to truth. The most effectual hitherto found is the freedom of the press. It is, therefore, the first shut up by those who fear the investigation of their actions.

And another founding father, Benjamin Franklin said, In those wretched countries where a man cannot call his tongue his own, he can scarce call anything his own. Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech; a thing terrible to public traitors.

They did not mince words, and for good reason. It is important to remember that historically, and in many places around the world today, people have been jailed for speaking out against their rulers or publishing ideas deemed controversial.

The Founders wrote the Constitution not long after Voltaire, a French Enlightenment writer, was forced to flee France for publishing works that criticized the monarchy without the approval of the royal censor. Similarly, the French philosopher Denis Diderot was imprisoned in 1749 for his opinions in "Philosophical Thoughts."

Without a free press and free speech the people have no way to investigate and hold their leaders accountable. It is no wonder that princes and politicians dislike the First Amendment as it is one of the few things keeping them in check and putting people on a more equal playing field.

While the Constitution has frequently failed to restrain our government and uphold natural rights as it was intended to, a cursory comparison of the U.S. and England shows our laws have done the better job of the two. (With some notable exceptions.)

The US may occasionally see private companies kick users off their platforms, an action most would consider a down side of private organizations exercising their freedom to draw their own boundaries on free speech. But in the UK, people are arrested for their social media posts and for showing vulgar dog tricks. It shouldnt be hard to pick the better scenario between the two.

Prince Harry loves to spout off about the monarchy, often taking to the airwaves to demean his own family members. One would think hed appreciate a key provision of the Constitution that ensures average citizens have the same abilityto criticize our own government without fear of government retaliation.

Hannah Cox is the Content Manager and Brand Ambassador for the Foundation for Economic Education. Republished from fee.org.

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OPINION: Prince Harry, allow me to explain the First Amendment - The Richmond Observer

WASHINGTON U.S. Senators Roger Wicker, R-Miss., and Cindy Hyde-Smith, R-Miss., today announced their support for legislation to prevent the Internal Revenue Service (IRS) from again being used as a political weapon against conservative non-profit groups.

Wicker and Hyde-Smith are original cosponsors of the Dont Weaponize the IRS Act (S.1777). The bill would codify a Trump rule that prevents the IRS from publicly revealing personal information about donors who give to certain non-profit groups. The protections apply regardless of a groups political ideology or beliefs.

In the past, the IRS has been weaponized to target tax-exempt groups for their political beliefs, but the Trump Administration rightly put an end to this practice, Wicker said. Attempts by congressional Democrats to remove this protection through S.1 cannot be allowed to go forward. The Dont Weaponize the IRS Act would make permanent the ban on the IRS being able to pry into the constitutionally-protected activities of American citizens, shielding conservative and liberal groups alike from undue pressure or intimidation.

Revelations in the Obama years that the IRS targeted groups based on political beliefs should have sent a chill down the backs of every freedom loving American. However, we see new efforts to allow that practice againthe targeting of not just groups but also the individuals who support them. This assault on First Amendment rights is wrong no matter your political leanings, Hyde-Smith said. The Dont Weaponize the IRS Act has my full support.

The need for S.1777 is linked to the systematic targeting of conservative tax-exempt groups by the Obama IRS from 2010 to 2012, and the Trump administrations response to that malfeasance. The Trump administration released a final rule in May 2020 that prevents the IRS from targeting certain tax-exempt groups based on their political beliefs.

The Democrats federal election takeover legislation (HR.1 and S.1) would repeal and undermine the Trump rule, allowing partisan bureaucrats at the IRS to target nonprofit organizations based on the applicants political and policy positions. During the Senate Rules Committee markup of S.1 earlier this month, both Wicker and Hyde-Smith introduced amendments to protect individuals from IRS overreach.

Senator Mike Braun (R-Ind.) and Republican Leader Mitch McConnell introduced S.1777, which is cosponsored by 43 Republican Senators.

The bill is endorsed by American Commitment, Americans for Prosperity, Americans for Tax Reform, Association of Mature American Citizens, Council for Citizens Against Government Waste, Club for Growth, Freedom Works, Heritage Action for America, Institute for Free Speech, National Taxpayers Union, and People United for Privacy. (Read endorsement statements here.)

To review the text of the Dont Weaponize the IRS Act, click here.

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Wicker, Hyde-Smith Cosponsor the 'Don't Weaponize the IRS Act' - Senator Roger Wicker

Rev. Jack Sullivan, Jr., Rev. Susan Smith, Rev. Dan Clark, Rev. Joan VanBecelaere, Samuel Prince, Tarunjit Singh Butalia; Rev. Susan Ritchie, Elaina Ramsey and Rev. Terry Williams| Guest Columnists

Religious and civil liberties are in grave danger in the state of Ohio. As people of conscience and people of faith, we cannot stay silent in the face of the worst existential threat to First Amendment freedoms in our states history.

Our legislature has introduced bills designed to discourage public witness, protest and dissent.

Laws that would criminalize churches and nonprofits that engage in public witness have been proposed alongside restrictions that will make it harder to vote.

In the midst of a once-in-a-generation pandemic, while our state strains under decades of underinvestment in social programs, infrastructure and essential worker protections, the Ohio legislature is spending its time targeting speech conservative lawmakers do not like.

Legislators, voted into office through our dysfunctional, gerrymandered and partisan district structure, are promoting a crackdown on voices that speak truth to power, aspiring to stifle any people-driven effort to hold Ohios public servants accountable.

This portfolio of anti-democracy bills betrays a very clear racial bias. Limiting voter rights, stifling dissent, criminalizing protest and punishing faith communities that participate in public witness of their moral convictions will disproportionately harm Black and brown communities, and organizations.

New voting restrictions in House Bill294 would allow right-wing politicians to select their own voters rather than having us voters choose our elected officials.

It would cut early voting hours, severely limit ballot drop boxes, limit access to absentee ballots and require most Ohioans to pay for postage on absentee ballots and ballot request forms.

More: Ohio GOP lawmakers propose election changes, limiting drop boxes and allowing online ballot requests

Anti-protest bills in the House and Senatecontain overly broad definitions of prohibited action, as well as vague and confusing language.

House Bill 109 would create higher fines and prison time for individuals and punish nonprofits involved in or supporting a protest where roads or sidewalks are blocked or police officers are harassed, intimidated or injured, or where even nonviolent action is deemed to be a riot.Riots in Ohio are broadly defined as five people or more engaged in a misdemeanor action of public disturbance.

And it increases fines and charges for even temporary vandalism of government property or statues.

More: Anti-riot or anti-protest? Four Ohio bills would stiffen penalties for demonstrators

House Bill 22 would increase penalties for merely distracting a law enforcement officer or throwing a diverting substance such as confetti or glitter.

Senate Bill 41 would require participants in a protest to pay financial reimbursement for the cost of policing and damage if there is any violence or vandalism, even if the participant did not cause any damage or engage in violence.

None of these anti-protest bills have bipartisan support in our gerrymandered legislature, nor do they show any diversity of support. They are too extreme, punitive, partisan and damaging to our democracy.

More: Our view: Ohio's election system needs a tweak, not an overhaul

We declare that Ohio will never bow to totalitarian pressures that seek to disenfranchise voters and eliminate religiously and morally motivated dissent.

God has a burning desire for justice.

Some say that the burning bush described in the book of Exodus is actually representative of this divine yearning, the burning that is in the heart of God for justice for all of God's people.

Rev. Dr. Martin Luther King understood this when he wrote, "It is God's desire for justice that makes the struggle for justice and freedom holy ground." We are standing on holy ground and we are burning for justice. We will not be silent, because the fire of commitment within us will not let us.

Rev. Jack Sullivan, Jr.,The Ohio Council of Churches;Rev.Susan Smith,Crazy Faith Ministries;Rev. Dan Clark,Faith in Public Life Ohio;Rev. Joan VanBecelaere and Samuel Prince, Unitarian Universalist Justice Ohio;Tarunjit Singh Butalia, Religions for Peace USA;Rev.Susan Ritchie,North Unitarian Universalist Church, Lewis Center; andElaina Ramsey andRev. Terry Williams,Ohio Religious Coalition for Reproductive Choice.

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Opinion: 'Ohio will never bow to totalitarian pressures' - The Columbus Dispatch

PROCEDURAL HISTORY:

In 2016, Lauren Kesterson filed suit against Kent State University (KSU), former KSU softball coach Karen Linder, and former interim KSU softball coach Eric Oakley. She asserted that Linder and Oakley violated her free speech and equal protection rights related to retaliation against her for reporting an alleged rape. Kesterson further alleged KSU violated Title IX. The district court granted summary judgment to KSU on all of Kestersons claims. Kesterson appealed the district courts decision in October 2019. The Court of Appeals gave Kesterson a win on some of her claims but upheld the dismissal of others.

Appropriate Persons

First Amendment

In order to substantiate a claim of prior restraint under the First Amendment, the alleged restraint must impose a legal impediment. (See Alexander v. United States, 509 U.S. 544, 551 (1993)). An employee telling a student not to tell anyone about an alleged assault does not impose a legal impediment, according to the Sixth Circuit.

[1] OWA is the term used by the 2020 Title IX regulations to identify an employee as an appropriate person.

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If Courts Cant Agree on Who an Appropriate Person, Is for Notice of Sexual Harassment Under Title IX, How Can We Expect a Student in Crisis to Do So?...

During an interview on actor Dax Shepherds podcast Armchair Expert, Prince Harry criticized what he believed was a First Amendment that permits just about anything to slide. He said you can find a loophole in anything. You can capitalize or exploit whats not said rather than uphold what is said.

Hes not wrong about those loopholes. The First Amendment allows propagandists, conspiracy theorists, and flat out provocateurs to say horrible things under the umbrella of freedom. But protecting unpopular speech, for all its problems, is well worth defending. A lot of the controversy these days isnt about the right to speak, but whether anyone should face any sort of consequences for their speech. (Getting banned on Twitter for expressing hate speech isnt a First Amendment issue, by the way.)

But when someone from another country dares to criticize America in any way especially when that person is from the Royal Family you can bet conservatives are going to lash out. (The same people hated when President Obama pointed out our countrys flaws, too.)

For what its worth, Prince Harry admitted the First Amendment controversies are a huge subject and one which I dont understand because Ive only been here a short time, but that didnt stop his critics from unleashing their fury.

That includes evangelist Franklin Graham, who took Harrys remarks as some sort of personal attack:

My ancestors were among those who came to this country to gain these freedoms. I am so thankful that I have the freedom to worship without government interference, and I thank God that the founders of our Constitution gave us this protection. Maybe Prince Harry could take some time while he is in this country to study our history, and I think he will come to appreciate that the First Amendment is part of what makes America great and one of the main reasons people have left everything to come here throughout history.

Its ironic to hear all that from Graham, given that the Republican Party he supports wants to suppress speech they dont like, like educating students about our nations racist history in school. (Other nations, by the way, also have free speech.)

In any case, Graham is exaggerating what Harry said, and its extremely condescending to suggest that Harry needs to educate himself on the matter when the GOP (and conservative Christians specifically) are in the business of ignoring history when it suits their political needs.

(Image via Shutterstock)

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Franklin Graham Can't Handle Prince Harry's Criticism of the First Amendment - Friendly Atheist - Patheos

Kami Rieck| Boston University Statehouse Program

BOSTON A sharp increase in incidents of hate, particularly directed at Asian Americans, has prompted lawmakers to file legislation to strengthen the states hate crime statute, provide better training to recognize bias and redefine penalties for breaking the law.

State Rep. Tram Nguyen, D-Andover, and state Sen. Adam Hinds, D-Pittsfield, recently joined forces with Attorney General Maura Healey in an effort to protect women and immigrants as targets of hate crimes; escalate penalties for repeat offenders; combine civil rights and hate crimes statutes into one section of the law; allow for harsher sentencing for severe offenses without creating mandatory minimums; and create clearer definitions of hate crimes.

Not only do we want more clarity on the law to specify exactly what hate crimes are so that they could be applied more fairly and accurately, but they're also providing officers with additional training to recognize what bias-motivated crimes are, Nguyen said.

The current hate crime law in Massachusetts is defined as one committed because of a persons race, color, religion, national origin, sexual orientation, gender identity or disability.

Hinds said the rise in hate crimes against the African American, Asian American, LGBTQ+ and Jewish communities made clear the need to propose changes to the current law.

The urgency of taking a stand against violent bigotry has just felt more and more poignant in the past several years, Hinds said. So moving this quickly feels important.

The rise in anti-Asian hate crimes has risen in the past year of the COVID-19 pandemic. The national organization Stop AAPI Hate received 67 reports from Massachusetts of anti-Asian discrimination 3,800 incidents nationwide from March 19 through Dec. 31 of last year, according to data.

In 2019, the Anti-Defamation League reported 2,107 hate crimes against Jewish people nationwide. Thatwas the highest number of hate crimes the ADL has tracked in its history. November 2020 federal data show crimes based on sexual orientation represent 16.7% of hate crimes, according to the Human Rights Campaign. In 2020, Black people were targeted in hate crimes more than any other group in the U.S., according to an FBI report.

Support for the changes is not universal.

State Rep. Peter Durant, R-Spencer, said the bill violates the First Amendment and allows for a subjective way of defining assault.

I think any time that we tinker with First Amendment protections or any protections afforded us under the Constitution, we have to be very careful, he said. This bill, while it does some good things in the form of increasing penalties for certain crimes, I think it takes a very precarious step towardlimiting your First Amendment rights.

Nguyen made clear that hate speech is not protected by the First Amendment.

Janhavi Madabushi, director of the Massachusetts Bail Fund, said prosecuting violence more stringently does not uproot racism or prevent violence.

Legislators should not bring forth bills that expand prosecuting powers and criminal charges if they want to combat racism, Madabushi wrote in an email. This is harm that ultimately vulnerable communities will be tasked with undoing.

There needs to be systemic solutions to address violence in all of its forms, said Carolyn Chou, executive director of the Asian American Resource Workshop. Increasing penalties could have unintended consequences that would harm communities of color, she said.

"More law enforcement has been shown, time and time again, to not prevent violence, but rather to add additional layers of violence and harm," Chou wrote in an email. We need to emphasize community response and support, deep dialogue between oppressed communities and transformative justice, as well as broader solutions like language access, data equity and ethnic studies."

Hinds said the new bill would do that by improvinglaws currently in place and giving discretion to judges to sentence accordingly and appropriately. The legislation will improve entire communities by addressing violence, he said.

We're also clarifying that we're not talking about First Amendment-protected expressions of hate, Hinds said. But instead being clear that we're prohibiting violent, threatening and destructive conduct.

State Rep. Tackey Chan, D-Quincy, supports the proposed changes because he believes the current law is vague and leaves too much interpretation as to whetheran attack is a hate crime. Many minorities and immigrants make up Quincy, and Chan said underreporting of hate crimes shows a clear need to clean up the statute.

I think it's a good first step in this conversation on hate crimes," Chan said. "I like to think of myself as an understanding person trying to learn, but there are certain things that are like, let's call like it is. I mean, if you target people to kill people because of what they look like or who they are.

The bill has been assigned to the Legislatures Judiciary Committee for a public hearing and review. Thirty House lawmakers and eight senators signed in support of the bill.

On April 22, the U.S. Senate passed a hate crime bill in response to the recent rise of anti-Asian discrimination. The bill, sponsored by Sen. Mazie Hirono, D-Hawaii, would expedite the Department of Justices review of COVID-19 hate crimes.

The bill also requires the DOJ to issue guidance for state and local law enforcement agencies on how to establish online hate crime reporting processes in multiple languages and how to expand culturally competent education campaigns.

For Nguyen, passing the new hate crimes law ensures that bias-motivated crimes are prosecuted and allows prosecutors and the judiciary to have clear guidance to look into motivating factors.

She also acknowledged that creating a new hate crime statute is only one part of addressing these pressing issues.

The bill is not meant to address the hate and violence, Nguyen said. To confront the root of human violence, she said there also needs to be racially and culturally inclusive education, despoliation of prejudices and biases people have, more resources for victims of hate crimes and new police and bystander intervention training.

This bill is looking to hold perpetrators who caused harm to communities accountable and to make sure that we are calling the hate crimes out so that we are signaling to communities that they matter, she said.

Originally posted here:
Sharp increase in hate crimes has Mass. legislators looking to tighten laws - Milford Daily News