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Aiming to prevent re-imposing mandatory mask-wearing when students head back to school in September, a group of parents and students is suing Gov. Phil Murphy and the state commissioners of education and health in U.S. District Court in Newark.

The lawsuit, which was filed by Princeton attorney Bruce Afran on July 9, names Murphy, Commissioner of Education Angelica Allen-McMillan and Commissioner of Health Judith Persichilli.

The lawsuit alleges that imposing mask mandates and other restrictive measures on school children is burdensome, and restricts and limits the rights of speech communication, association and privacy protected by the First, Fifth and 14th amendments to the U.S. Constitution.

Murphy lifted the face mask, barrier and social distancing requirements for children and adults at theaters, malls, stores, restaurants, houses of worship, weddings and similar community settings earlier this year but not in schools.

The mask mandate and other COVID-19 measures that apply only to school children and not to others who gather in public violates their First Amendment rights, the lawsuit said. This includes wearing a mask throughout the school day, which inhibits their ability to clearly communicate verbally and non-verbally through facial expressions.

Requiring children to stay at least six feet apart at all times including lunch and to stay inside the Plexiglass barrier surrounding their desks also violates the First Amendment right to free association, the lawsuit said.

The requirement to sit behind a Plexiglass barrier, enforcing a separation between students, is an alienating experience and a type of imprisonment within the classroom, Afran said.

Applying the mask mandate and other measures that target school children but not others who gather in public violates the equal protection clause of the 14th Amendment, the lawsuit said.

Those mandates also violate the equal protection clause of the New Jersey Constitution, thereby depriving plaintiffs of their right to due process under the Fifth Amendment to the U.S. Constitution, the lawsuit said.

Murphy and Allen-McMillan specifically stated that school districts are empowered and authorized to continue social distancing and physical separation between students, the lawsuit said.

Murphy also expressly reserved for himself the power to reimpose mask mandates and other restrictions in the schools via executive order, the lawsuit said. The complaint challenges state officials power and authority to do so.

There is a very realistic chance that the mask mandate will be reinstated, Afran said.

Children are being used, in a sense, as tools in a great experiment. The governor does not have the statutory power to do this, Afran said.

Murphy would have to abide by administrative procedures that require public hearings before rules that limit childrens rights could be carried out, Afran said. There have been no public hearings and the State Legislature has not taken action, he said.

Mandatory mask wearing and other measures are not only a violation of basic fundamental liberty rights of children, but there is no rational basis for them, Afran said.

Children are not known to be truly susceptible in any real way to COVID. There has been virtually no child mortality in any significance from this disease, he said.

The Centers for Disease Control and Prevention listed 397 deaths of persons up to 18 years old as attributable to COVID-19 nationwide as of July 14, according to agencys website. This compares to 609,000 deaths attributable to COVID as of July 20, according to covidusa.net.

The Princeton, Lawrence and East Windsor Regional school districts brought some students back into the classroom using hybrid learning, in which they divided their time between in-person and remote learning, during the 2020-21 school year. Other students chose to stay home and learned remotely.

Asked about the number of children who have tested positive for COVID-19, Princeton Health Officer Jeffrey Grosser said 66 children under 18 years old tested positive for the illness. Six of those 66 cases were linked to school-based exposures, he said.

Clearly, there is overlap with family and sibling exposures, so those six cases are confirmed exposures within the school and no other known COVID-19 exposures, Grosser said.

In the Lawrence Township Public Schools, 96 students tested positive for COVID-19 between January and April, said Ross Kasun, the superintendent of schools. The district only knows of the cases that were reported to it, he said.

Students who were only on remote learning did not have to share information with the school district, so those numbers may be low, Kasun said. There were many cases of students who were learning remotely and who did not report test results to the district, he said.

In the East Windsor Regional School District, which includes East Windsor Township and Hightstown Borough, there have been 202 students who tested positive for COVID-19 since September 2020.

None of the cases listed on the East Windsor Regional School Districts COVID-19 dashboard are directly related to an exposure while in school, said Mark Daniels, the superintendent of schools.

Through the contact tracing process, it appears the positive cases were associated with activities and interactions that occurred while students were outside of school, Daniels said.

This would include household or family transmission, community activities and social gatherings, Daniels said.

Afran dismissed the need for harsh, draconian measures in the schools. Adults can be vaccinated against COVID-19, he said.

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Lawsuit filed to prevent mandatory masks in schools - centraljersey.com

WORCESTER In the fall of 2011, Joan Honig, a longtime real estate lawyer consulting for a local nonprofit, was asked to gather information about a possible rehabilitation project in Worcester.

A stalled project at 5 May St., a large buildingthe city was working with a developer to rehaul into 13 units of affordable housing, seemed like the kind of jobher client, the South Middlesex Opportunity Council, was well suited to tackle.

Honig, as is standard for such deals, visited the site and spoke with the developer and city official driving the project, with an aim of understanding how much money had been put into the building and how much cash was still needed.

Thus began a monthslong process that led to frustration, stalemate and, a decade later, a witness stand in federal court.

They had so much prior financing, and the building was unfinished, Honig, a former state housing official, told a federal prosecutor Tuesday as she detailed a succession of confusing interactions that left her wondering where the money went.

Tuesday was the seventh day of trial for Jacklyn M. Sutcivni, the former city chief of staff for economic development accused of aiding developer James E. Levin of bilking the government of $2 million in federal rehabilitation funds.

Levin is serving a 37-month prison sentence after admitting to fraud and conspiracycharges, while Sutcivni is putting her case to the jury.

Levin has not been called to testify by prosecutors, and asserted his Fifth Amendment privilege not to testify for the defense after a judge foundhe might perjure himself on the stand.

Prosecutors have spent hours asking witnesses about their dealings with Levin and Sutcivini, with lawyers for the former city official noting that many of those witnessesdealt primarily with Levin.

Honig who took great care with her wordsTuesday, pausing often to consult her old notes testified that both Sutcivni and Levin failed to deliver the financial information she needed to assess the project.

I was getting changing numbers about everything, she said, and conflicting stories.

The now-retired consultant said it appeared Levin was interested in getting something from SMOC for the building after running into funding woes.

But after visiting the building in September 2011 and seeing how little work had been done, she said she and SMOC officials wanted specifications on expenditures so they could assess how much money they might need to finish it.

Levin, with help from city officials, had secured about $2.3 million in federal grant funds for the project. The amount he hadspent depended, Honig said, on who she asked.

Honig testified that Levin indicated there was about $650,000 in funding left, but that Sutcivni had told her the funds had run dry.

While both Sutcivni and Levin cited federal law that required heightened wages for workers as a factor, Honig said that wouldnt come close to accounting for the gap between expenditures and progress.

When she pressed harder, she said, Levin alleged on a phone call that the electrician he hadhired to manage the project had drained bank accounts.

You never heard it. Dont tell anyone, Honig quoted Levin as saying as she read from her contemporaneous notes.

Levins electrician who testified last week he left the job after concerns about Levins integrity and the slow work pace was never charged or accused of wrongdoing.

Instead, prosecutors have presented evidence to jurors suggesting that Levin was under financial strain in 2011 when another city property he had taken on suffered damage that left him liable for more than $1 million in remediation.

Workers who had been hired for 5 May St. were diverted to other Levin projects, the electrician testified, and the plans for the Main South apartment building were constantly changing.

Honig said she asked both Levin and Sutcivni for specific documents relating to 5 May St. including forms showing reimbursement of worker wages and other expenses but never received most of what she had requested.

Emails entered into evidence by prosecutors memorialized the detailed requests for information Honig had lodged over a period of months. She recalled setting up a meeting at Sutcivnis city hall office in hopes of receiving further information, to no avail.

I got nothing, she told the jury.

Honig said when she pressed Levin further on where the money went, he shrugged and said it was probably his fault, and that he didnt know what happened.

She said he admitted to not understanding federal prevailing wage requirements and not being a good money manager.

By early winter of 2012, SMOC gave up on the project, Honig said, after a consultant it hired to check out the building opined it would take well over $1 million to finish.

The consultant, James Hass, testified Tuesday that he estimated about $650,000 had been put into the building as of that time, and $1.7 million more would be needed to complete the project under federal procurement guidelines.

That meant, Honig noted in her testimony, that a project initially anticipated at costing around $2 million was instead potentially going to cost double that amount.

Honig said Sutcivni had told her she estimated it would take between $400,000 and $500,000 to finish the job.

Federal agents have testified that Sutcivni told them Levin encountered unanticipated expenses with the project, and that she and other officials were working with him to get additional funding.

She allegedly told the agents she knew the expenses Levinsubmitted were not all for work he had performed, but maintained he did expend the dollar amounts.

Agents testified Sutcivni never provided proof of the claim, and have noted she, in 2010, bought a condo from a business associate of Levins that appeared to help her shirk a city residency requirement.

Dori Vecchio, the citys longtime director of human resources who left this month to become town administrator in Blackstone, took the stand Tuesday to discuss her role in processing checks to Levin.

Lawyers for Sutcivni have suggested city officials conducted poor oversight, calling what happened a systemic failure influenced by poor internal controls.

Vecchio told the jury Tuesday that she was only responsible for crunching numbers to make sure the project was on budget, not for verifying the accuracy of the reimbursement requests themselves.

Vecchio, who in 2010 was an official in the citys budget office, confirmed that she sent one request from Sutcivni back for changes after noticing an architect had not certified a figure for expenses on the required documentation.

The architect for 5 May St., Steven Petitpas, testified Monday that he hadrefused to certify the expenses because he knew not all the work was done. Emails entered into evidence showed Sutcivni advising Levin to certify the figure himself.

Vecchio said she cut the $720,000 check in question after the form was returned to her signed by Levin with the proper figure listed as certified.

When a prosecutor asked her whether she noticed Levin had signed the document both as the developer and the architect, Vecchio said she had not.

She emphasized that her role was confined to double-checking figures for instance, making sure all the itemized expenses added up to the total and said she had no reason not to trust the figuresher colleague had provided.

Vecchio said the documentation supporting the line items was supposed to be vetted and kept by Sutcivni, who worked in a different department.

Robert M. Shaw Jr., a former city inspector who worked under Sutcivni in 2010, testified Monday that he was thecity employee tasked with checking in on the projects the city was overseeing through the federal program used for 5 May St.

On cross-examination Tuesday, Shaw testified that it wasnt unusual for contractors to cross off the architect line on reimbursement forms and sign themselves.

However, as Assistant U.S. Attorney Danial E. Bennett drew out in questioning, the other projects being done at the time under the federal grant program were mostly single family residences.

Shaw left the city in November 2010 after a federal grant funding his position dried up.

Sutcivnis trial resumes Wednesday.

More: Former top Worcester housing official wore wire for FBI years before own alleged corruption

More: Via Zoom from prison, developer claims Fifth at trial of former Worcester housing official

More: Worcester housing official trial: Contractor details quitting 5 May St. job after slow pace, integrity concerns

More: Emails show developer, business partner talking about sale of condo to top city official

More: Architect on 5 May St. project refused to sign reimbursement form from developer

Contact Brad Petrishen at brad.petrishen@telegram.com. Follow him on Twitter @BPetrishenTG.

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'You never heard it': Consultant details shifting excuses on 5 May St. financials - Worcester Telegram

"The law prescribes strict adherence to regular procedure as safeguard against tyrannical rule."The due process clause of the US Constitution is embodied in Fifth and Fourteenth Amendments which guarantee that no person shall be deprived of life, liberty, or property, without due process of law. This rule of law originated in the English common law which can be traced to the Magna Carta. It prescribes strict adherence to regular procedure as safeguard against tyrannical rule. In time US courts expounded on its meaning to include limitations on legislation and protection of certain areas of individual liberty from regulation. While the Fourteenth Amendment and the Fifth Amendment both include a due process clause, the Fifth Amendments due process clause applies to the federal government, while the Fourteenth Amendments due process clause applies to state governments. The US Supreme Court interprets these clauses to mean that they provide three protections: Procedural due process (in civil and criminal proceedings); substantive due process, a prohibition against vague laws; and as the vehicle for the incorporation of the Bill of Rights.The clause is capsulized in American jurisprudence to refer to the embodiment of the sporting idea of fair play. It relates to certain immutable principles of justice which inhere in the very idea of free government (Holden v. Hardy, 169 U.S. 366).As interpreted by the U.S. Supreme Court in the 1884 case of Hurtado v. California, the Court said: Due process of law in the [Fourteenth Amendment] refers to that law of the land in each state which derives its authority from the inherent and reserved powers of the state, exerted within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and the greatest security for which resides in the right of the people to make their own laws, and alter them at their pleasure.The U.S. Constitutional proscription on unreasonable searches is embodied in the Fourth Amendment which provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The aim is to avoid the evils of general warrants by requiring that each search or seizure should be cleared in advance by a judge, and that to get a warrant the government must show probable cause to justify the search or seizure. Like the Fifth and Fourteenth amendments and the rest of the Bill of Rights, the Fourth Amendment emanated from the seventeenth-and eighteenth-century English common law. However, the Fourth Amendment is unique in a sense that it arose out of a strong public reaction to three cases from the 1760s, two decided in England and one in the colonies, namely; Wilkes v. Wood, 19 Howells State Trials 1153 (C.P. 1763), and Entick v. Carrington, Howells State Trials 1029 (C.P. 1765), involving pamphleteers charged with seditious libel for criticizing the kings ministers and, through them, the king himself.In both cases, agents of the king issued a warrant authorizing the ransacking of the pamphleteers homes and the seizure of all their books and papers. (An aside is necessary at this point: search warrants were issued by agents of the Crown on their own initiative.) Wilkes and Entick sued for damages, claiming that the warrants were void and that the searches pursuant to them were therefore illegal. Both Wilkes and Entick won, with powerful opinions issued by Lord Camden, the judge in both cases.The third case was the Writs of Assistance Case. British customs inspectors seeking to stamp out smuggling in colonial Boston were given blanket search warrants, called writs of assistance, that permitted them to search anyplace where they thought smuggled goods might be. (The writs also allowed the inspectors to compel private citizens to help them carry out the searcheshence the writs name.) Some Boston merchants, represented by James Otis, sued, seeking a holding that the writs were invalid. The merchants lost, but Otiss argument, with its ringing defense of individual privacy, became famous and strengthened opposition to British rule. John Adams later said of Otiss argument that then and there the child Independence was born.Historians generally agree that the Fourth Amendment was designed to affirm the results in Wilkes and Entick, and to overturn the result in the Writs of Assistance Case.Three principles arose out of these three cases. First, the government should not be allowed to search without some substantial justification, some reason to believe the place being searched contains the evidence being sought. Second, searches, particularly of private homes, should not go beyond their justification. Third, the government should not use blanket warrants to evade the first two principles.All these were eventually transplanted to the Philippines first through the American organic acts which applied the US Bill of Rights to our country and through the 1935, 1973, and 1987 Constitutions.

COMMENT DISCLAIMER: Reader comments posted on this Web site are not in any way endorsed by Manila Standard. Comments are views by manilastandard.net readers who exercise their right to free expression and they do not necessarily represent or reflect the position or viewpoint of manilastandard.net. While reserving this publications right to delete comments that are deemed offensive, indecent or inconsistent with Manila Standard editorial standards, Manila Standard may not be held liable for any false information posted by readers in this comments section.

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American jurisprudence on searches and seizures - manilastandard.net

We Americans have a contradictory history when it comes to tolerating, or not tolerating, dissent. The latest chapter is the Nikole Hannah-Jones controversy at UNC-Chapel Hill.

The fight, fittingly, played out around July 4th, the most American of holidays. We take off work, grill hot dogs and set off fireworks to celebrate our Declaration of Independence and, supposedly, our dedication to independence of speech and thought.

That dedication has been tested from the nations beginning.

In 1798, Congress and President John Adams passed the Alien and Sedition Acts. The sedition law outlawed any false, scandalous and malicious writing against Congress or the President and made it illegal to conspire to oppose any measure or measures of the government. A congressman and a journalist were convicted and sent to jail. The laws were repealed or expired after Thomas Jefferson was elected President in 1800.

Race and dissent have long been intertwined. Before the Civil War, Southern states banned abolitionist writing and speaking. The U.S. House passed a Gag Resolution in 1836 to squelch discussion of abolishing slavery. For 100 years after the Civil War, advocating for Black Americans civil rights could be dangerous.

In the 1960s, racist demagogues like North Carolinas Jesse Helms, a television editorialist then, conflated communism and civil rights. In 1983, Senator Helms filibustered against a national holiday for Dr. Martin Luther King, Jr. Helms said King followed a philosophy of action-oriented Marxism that is not compatible with the concepts of this country.

Helms was a father of the Speaker Ban Law that thrust UNC-Chapel Hill into a battle over free speech almost 60 years ago. On the last day of the 1963 session, after just an hour of debate, the legislature enacted the law, which prohibited speeches on North Carolina public college campuses by known members of the Communist Party, persons known to advocate the overthrow of the constitutions of North Carolina or the United States, or individuals who had pleaded the Fifth Amendment in order to decline answering questions concerning communist subversion.

For years, the ban embroiled the university in controversy. Its accreditation was threatened. In 1969, a three-judge federal court ruled that the law was an unconstitutional violation of the First Amendment.

Now the university is embattled over Hannah-Jones, who won a Pulitzer Prize for The New York Times The 1619 Project. The project tells how slavery has shaped America since slaves were first brought here over 400 years ago.

Conservatives claim the 1619 viewpoint somehow threatens our 1776 national narrative. But both stories shaped our nations history. Both should be studied.

When Hannah-Jones announced last week that she wouldnt be coming to UNC, the state Republican Party exulted that she will no longer be spreading her divisive agenda at UNC-Chapel Hill.

Is that cancel culture?

Explaining her decision, Hannah-Jones criticized the universitys leadership. She called out Walter Hussman, the Arkansas publisher and big donor for whom the journalism school is now named and who opposed her hiring:

I cannot imagine working at and advancing a school named for a man who lobbied against me, who used his wealth to influence the hires and ideology of the journalism school, who ignored my 20 years of journalism experience, all of my credentials, all of my work, because he believed that a project that centered on Black Americans equaled the denigration of white Americans.

Her decision is understandable. But many people at UNC stuck out their necks for her and may get their heads cut off in retaliation. The fight for freedom of speech and thought will go on without her voice at Chapel Hill.

Gary Pearce was a reporter and editor at The News & Observer, a political consultant, and an adviser to Gov. Jim Hunt from 1976-84 and 1992-2000.

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UNC and the debate over dissent | Editorial Columnists | dailyadvance.com - The Daily Advance

Say the government urges various intermediariesbookstores, billboard companies, payment processors, social media platformsto stop carrying certain speech. The government isn't prosecuting them or suing them, just asking them. (This is in the news both with regard to the Biden Administration "flagging problematic posts for Facebook that spread disinformation" and Donald Trump's lawsuits against Facebook, Twitter, and YouTube, to the extent they claim government officials' speech pressured those platforms into blocking him.) Is such government urging constitutional?

[A.] Generally speaking, courts have said "yes, that's fine," so long as the government speech doesn't coerce the intermediaries by threatening prosecution, lawsuit, or various forms of retaliation. (Indeed, I understand that government officials not uncommonly ask newspapers, for instance, not to publish certain information that they say would harm national security or interfere with an ongoing criminal investigation.) Here's a sample of appellate cases so holding:

[1.] A New York City official sent a letter urging department stores not to carry "a board game titled 'Public AssistanceWhy Bother Working for a Living.'" The letter said the game "does a grave injustice to taxpayers and welfare clients alike," and closes with, "Your cooperation in keeping this game off the shelves of your stores would be a genuine public service." Not unconstitutional, said the Second Circuit in Hammerhead Enterprises, Inc. v. Brezenoff (1983):

[T]he record indicates that Brezenoff's request to New York department stores to refrain from carrying Public Assistance was nothing more than a well-reasoned and sincere entreaty in support of his own political perspective. Where comments of a government official can reasonably be interpreted as intimating that some form of punishment or adverse regulatory action will follow the failure to accede to the official's request, a valid claim can be stated. [But] appellants cannot establish that this case involves either of these troubling situations.

[2.] The Attorney General's Commission on Pornography sent letters to various corporations (such as 7-Eleven) urging them not to sell pornographic magazines:

The Attorney General's Commission on Pornography has held six hearings across the United States during the past seven months on issues related to pornography. During the hearing in Los Angeles, in October 1985, the Commission received testimony alleging that your company is involved in the sale or distribution of pornography. The Commission has determined that it would be appropriate to allow your company an opportunity to respond to the allegations prior to drafting its final report section on identified distributors.

You will find a copy of the relevant testimony enclosed herewith. Please review the allegations and advise the Commission on or before March 3, 1986, if you disagree with the statements enclosed. Failure to respond will necessarily be accepted as an indication of no objection.

Please call Ms. Genny McSweeney, Attorney, at (202) 724-7837 if you have any questions.Thank you for your assistance.

Not unconstitutional, said the D.C. Circuit in Penthouse Int'l v. Meese (1991):

In our case, the Advisory Commission had no tie to prosecutorial power nor authority to censor publications. The letter it sent contained no threat to prosecute, nor intimation of intent to proscribe the distribution of the publications. And the Supreme Court has never found a government abridgement of First Amendment rights in the absence of some actual or threatened imposition of governmental power or sanction.

We do not see why government officials may not vigorously criticize a publication for any reason they wish. As part of the duties of their office, these officials surely must be expected to be free to speak out to criticize practices, even in a condemnatory fashion, that they might not have the statutory or even constitutional authority to regulate. If the First Amendment were thought to be violated any time a private citizen's speech or writings were criticized by a government official, those officials might be virtually immobilized.

[3.] A New York state legislator and a New York Congressman accused X-Men Security, a security organization connected to the Nation of Islam, of various conspiracies, "asked government agencies to conduct investigations into its operations, questioned X-Men's eligibility for an award of a contract supported by public funds, and advocated that X-Men not be retained." X-Men lost certain security contracts as a result. Not unconstitutional, said the Second Circuit in X-Men Security, Inc. v. Pataki (1999):

[J]ust as the First Amendment protects a legislator's right to communicate with administrative officials to provide assistance in securing a publicly funded contract, so too does it protect the legislator's right to state publicly his criticism of the granting of such a contract to a given entity and to urge to the administrators that such an award would contravene public policy. We see no basis on which X-Men could properly be found to have a constitutional right to prevent the legislators from exercising their own rights to speak.

[B.] On the other hand, where courts find that the government speech implicitly threatened retaliation, rather than simply exhorting or encouraging third parties to block speech, that's unconstitutional. The Supreme Court case on that is Bantam Books, Inc. v. Sullivan (1963), where a state commission threatened to prosecute stores that sold books that it viewed as pornography (including books that were actually protected by the First Amendment). And lower court cases have applied that even absent express threat of prosecution, for instance:

[1.] The mayor and a trustee of a New York town sent a letter to a newspaper demanding to learn more about who was involved in an article critical of local officials. Potentially unconstitutional, the Second Circuit held in Rattner v. Netburn (1991):

Though the district court characterized the Netburn letter as simply a plea to the Chamber to rid itself of political affiliations, that letter stated that the recent Gazette "raises significant questions and concerns about the objectivity and trust which we are looking for from our business friends," and it asked "[w]ho wrote" the questions and requested "a list of those members who supported the inclusion of this 'article'." Further, the record includes evidence that, when questioned about the letter, Netburn also stated that he had made a list of the local businesses at which he regularly shopped. The district court's ruling that the language of the Netburn letter, either standing alone or in all the circumstances, is not a veiled threat of boycott or reprisal does not view that language in the light most favorable to Rattner as the nonmoving party.

[And] a threat was perceived and its impact was demonstrable. Several Chamber directors testified at their depositions that they viewed the letter as reminiscent of McCarthyism, threatening them with boycott or discriminatory enforcement of Village regulations if they permitted the publication of additional statements by Rattner; the Chamber member who had been "in charge of" theGazettetestified that following receipt of the Netburn letter, he had actually lost business and had been harassed by the Village.

Further, the Netburn letter caused the Chamber to cease publication of theGazette;and it advised Rattner of this decision while concealing from him the fact that another issue would be forthcoming, in order to avoid having to publish in that issue material for which he had already paid. Thus, the fact that Netburn's letter and statement "were not followed up with unannounced visits by police personnel" should hardly have been deemed dispositive since the Chamber immediately capitulated to what may reasonably be viewed as an implicit threat.

[2.] The President of the Borough of Staten Island sent a letter to a billboard company urging it to take down an anti-homosexuality billboard, which closed with:

Both you and the sponsor of this message should be aware that many members of the Staten Island community, myself included, find this message unnecessarily confrontational and offensive. As Borough President of Staten Island I want to inform you that this message conveys an atmosphere of intolerance which is not welcome in our Borough.

P.N.E. Media owns a number of billboards on Staten Island and derives substantial economic benefits from them. I call on you as a responsible member of the business community to please contact Daniel L. Master, my legal counsel and Chair of my Anti-Bias Task Force to discuss further the issues I have raised in this letter.

Potentially unconstitutional, the Second Circuit held in Okwedy v. Molinari (2003):

In the present case, a jury could find that Molinari's letter contained an implicit threat of retaliation if PNE failed to accede to Molinari's requests. In his letter, Molinari invoked his official authority as "Borough President of Staten Island" and pointed out that he was aware that "P.N.E. Media owns a number of billboards on Staten Island and derives substantial economic benefits from them." He then "call[ed] on" PNE to contact Daniel L. Master, whom he identified as his "legal counsel and Chair of my Anti-Bias Task Force."

Based on this letter, PNE could reasonably have believed that Molinari intended to use his official power to retaliate against it if it did not respond positively to his entreaties. Even though Molinari lacked direct regulatory control over billboards, PNE could reasonably have feared that Molinari would use whatever authority he does have, as Borough President, to interfere with the "substantial economic benefits" PNE derived from its billboards in Staten Island.

[3.] The Sheriff of Cook County (Illinois) sent letters to Mastercard and Visa saying,

As the Sheriff of Cook County, a father and a caring citizen, I write to request that your institution immediately cease and desist from allowing your credit cards to be used to place ads on websites like Backpage.com [which hosted ads for sex-related services].

Potentially unconstitutional, the Seventh Circuit held in Backpage.com, LLC v. Dart (2015); the court went through the Sheriff's letter in detail, and concluded:

And here's the kicker: "Within the next week, please provide me with contact information for an individual within your organization that I can work with [harass, pester] on this issue." The "I" is Sheriff Dart, not private citizen Dart the letter was signed by "Thomas Dart, Cook County Sheriff."

And the letter was not merely an expression of Sheriff Dart's opinion. It was designed to compel the credit card companies to act by inserting Dart into the discussion; he'll be chatting them up.

Further insight into the purpose and likely effect of such a letter is provided by a strategy memo written by a member of the sheriff's staff in advance of the letter. The memo suggested approaching the credit card companies (whether by phone, mail, email, or a visit in person) with threats in the form of "reminders" of "their own potential liability for allowing suspected illegal transactions to continue to take place" and their potential susceptibility to "money laundering prosecutions and/or hefty fines." Allusion to that "susceptibility" was the culminating and most ominous threat in the letter.

[C.] Does it matter whether the government acts systematically, setting up a pipeline for requests to the media? One can imagine courts being influenced by this, as they are in some other areas of the law; but I know of no First Amendment cases so holding.

[D.] Now in some other areas of constitutional law, this question of government requests to private actors is treated differently, at least by some courts. Say that you rummage through a roommate's papers, find evidence that he's committing a crime, and send it to the police. You haven't violated the Fourth Amendment, because you're a private actor. (Whether you might have committed some tort or crime is a separate question.) And the police haven't violated the Fourth Amendment, because they didn't perform the search. The evidence can be used against the roommate.

But say that the police ask you to rummage through the roommate's papers. That rummaging may become a search governed by the Fourth Amendment, at least in the eyes of some courts: "the government might violate a defendant's rights by 'instigat[ing]' or 'encourag[ing]' a private party to search a defendant on its behalf."

Likewise, "In the Fifth Amendment context, courts have held that the government might violate a defendant's rights by coercing or encouraging a private party to extract a confession from a criminal defendant." More broadly, the Supreme Court has said that "a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State."

So maybe there's room for courts to shift to a model where the government's mere encouragement of private speech restrictions is enough to constitute a First Amendment violation on the government's part.

[E.] One more twist, relevant to the Trump lawsuits: Say that the government is found to have coerced a private entity into restricting plaintiff's speech. Can plaintiff sue the private entity, or can he just sue the government?

It might be quite sensible to say that the private entity is the victim of government coercion, and shouldn't be blamed for going along with it. After all, if you are free to do something on your own, and you do it, you couldn't be sued. Why should the government's coercion that forces you to do something that you have the right to do on your own make you liable (as opposed to making the government liable)?

Yet there's at least a plausible argument that the coerced intermediary could indeed be sued. See Adickes v. S.H. Kress & Co. (1970) (concluding that "the decision of an owner of a restaurant to discriminate on the basis of race under the compulsion of state law offends the Fourteenth Amendment"); Skinner v. Railway Labor Executives' Ass'n (1989) ("A railroad that complies with the provisions of Subpart C of the regulations [requiring drug testing of certain employees] does so by compulsion of sovereign authority, and the lawfulness of its acts is controlled by the Fourth Amendment."); Carlin Communications, Inc. v. Mountain States Tel. & Tel. Co. (9th Cir. 1987) ("With this threat [of prosecuting defendant for allowing plaintiff's dial-a-porn], Arizona 'exercised coercive power' over Mountain Bell and thereby converted its otherwise private conduct into state action for purposes of 1983"). There's a lot more that can be said about the matter, but I just thought that I'd note here that such liability for the intermediary is at least potentially available.

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When Government Urges Private Entities to Restrict Others' Speech - Reason