Mediaboss Marketing

The ACLJ is gearing up to file an application with the United States Supreme Court for a writ of certiorari in our case defending prayer. We will petition the Supreme Court to address a question of fundamental significance that has plagued the lower courts across the country for decades: whether voluntarily seeking out and being offended by government conduct that allegedly violates the Establishment Clause creates an injury in fact sufficient to allow a complainant standing (i.e. the ability to bring a legal challenge).

It's often called offended observer standing and it has plagued our federal judiciary for years, improperly allowing anti-Christian forces to run to federal court and claim a constitutional crisis every time they see a public official in any way practice his or her Christian faith, such as praying, or even the public recognition of our Judeo-Christian heritage as a nation, such as under God in the Pledge of Allegiance. Its high time we set the record straight.

Our decision to file with the Supreme Court follows a lengthy legal battle that began in 2014 to defend Americas long-time tradition of calling for prayer a freedom our Founders sought to secure, rather than prohibit, through the ratification of the First Amendment. Time and again, the Supreme Court has upheld government involvement in and/or association with prayer including legislative prayer, prayer in the military, and prayers offered by chaplains. The City of Ocala followed suit by encouraging citizens to gather for a community prayer vigil organized by private citizens in response to a crime spree in the community. Chaplains for the police department attended and helped lead the vigil. Plaintiffs then sued arguing that the City of Ocala violated the Establishment Clause.

As we previously explained:

In 2014, the City of Ocala experienced a crime spree resulting in injury to several children. The police knew the identity of the shooters but could not persuade witnesses to come forward to testify. Consistent with community policing standards regularly employed by the Citys police department, Chief Graham met with local NAACP leaders who suggested the police department reach out to the local faith-based community for help in persuading witnesses to come forward. Chief Graham did just that.

In response, community leaders decided to hold a community prayer vigil. The vigil was planned and organized by private citizens. Volunteer chaplains, along with private citizens, led the vigil that was widely supported and well attended. At the request of the organizers for the event, Chief Graham posted a letter encouraging unity and prayer and attendance at the vigil. Atheists, offended by the idea of prayer at the vigil, demanded City officials cancel the event. Despite City officials continued explanation that it could not cancel a privately organized event, the atheists cried foul and later sued the City for allegedly promoting the vigil.

Outrageously, the atheists admit they attended the vigil to witness what they believed would be a violation of the Establishment Clause and to protest. They filed suit, and unfortunately the federal district court ruled in their favor. So we appealed to the Eleventh Circuit Court of Appeals.

As we reported earlier this year, the ACLJ presented oral argument before the Eleventh Circuit in April. We asked the Eleventh Circuit to reverse the decision issued by the lower court which held that (1) plaintiffs had standing to bring the lawsuit, and (2) the Citys alleged involvement with the prayer vigil violated the First Amendment and must be held unconstitutional under the Lemon test.

On July 22, 2022, the Eleventh Circuit issued its decision agreeing that the district court applied the wrong legal test (the Lemon test). The Court reversed the district courts decision and remanded the case with instructions to evaluate the facts in light of the historical practices and understandings standard endorsed by the Supreme Court this year in Kennedy v. Bremerton School District, 142 S. Ct. 2407 (2022). On the issue of standing, however, the Eleventh Circuit held that at least one plaintiff did have standing to sue.

As we have argued in our briefing throughout litigation of this case, and plan to do again in our certiorari petition, the Supreme Court in Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., held that plaintiffs who fail[ed] to identify any personal injury . . . other than psychological consequence presumably produced by observation of conduct with which one disagrees does not have standing. 454 U.S. 464, 485 (1982). Simply put, federal courts are constitutionally authorized to address cases and controversies, not resolve disagreement and offense. Am. Legion v. Am. Humanist Assn, 139 S. Ct. 2067, 2101 (2019) (Gorsuch, J., concurring).

Our petition, on behalf of the City of Ocala, will likely be the first petition to raise the issue of whether offended observer standing is sufficient in the wake of the Supreme Courts decision to overrule Lemon v. Kurtzman, 403 U.S. 602 (1971). As Justice Gorsuch, joined by Justice Thomas, recently observed, the lower courts invented observer standing for Establishment Clause cases in the 1970s in response to this Courts decision in Lemon. Am. Legion, 139 S. Ct. at 2101. Now that Lemon is a thing of the past, so too must be any notion of offended observer standing, which was tethered to Lemon itself.

We plan to file our cert. petition asking the Supreme Court to take up this important case in the coming months. This will be a major moment for prayer and religious liberty at the Supreme Court.

Here is the original post:
ACLJ Taking Major Public Prayer Case to the U.S. Supreme Court - American Center for Law and Justice

A federal judge invoked Stranger Things, Immanuel Kant, and Friedrich Nietzsche in dismantling the states defense of Gov. Ron DeSantis Stop Woke Act, declaring the effort to constrain workplace sensitivity training violates the First and Fourteenth Amendment.

In a 44-page opinion, U.S. District Judge Mark Walker in Tallahassee ruled that the law formally, the Individual Freedom Act, or IFA amounts to an attempt by the state of Florida to impose its preferred positions about the existence of systemic racism and sexism on the workplace and public schools.

DeSantis signed the measure in April.

Floridas legislators may well find plaintiffs speech repugnant. But under our constitutional scheme, the remedy for repugnant speech is more speech, not enforced silence. Indeed, it is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, Walker wrote.

If Florida truly believes we live in a post-racial society, then let it make its case. But it cannot win the argument by muzzling its opponents. Because, without justification, the IFA attacks ideas, not conduct, plaintiffs are substantially likely to succeed on the merits of this lawsuit.

The judge also ruled, in an opinion handed down on Thursday, that the law is impermissably vague under the Due Process Clause of the Fourteenth Amendment because its definitions of whats objectionable are too vague, even unintelligible.

Walker ruled in a complaint filed by Honeyfund.com Inc., a technology company in Clearwater with 16 employees, and Team Primo, a Black-owned Ben & Jerrys franchisee in Clearwater Beach and Tampa, that wanted to conduct sensitivity training, and by a consultant who conducts the training.

The named defendants were DeSantis, Attorney General Ashley Moody, and members of the Florida Commission on Human Relations who would enforce the law, although the injunction doesnt apply to the governor because he doesnt directly enforce the law.

The decision doesnt discuss the laws application to schools, since the plaintiffs didnt raise that matter.

Walker noted that this was not the first DeSantis initiative blocked on First Amendment grounds, citing as one example the governors bid to punish technology and social media companies.

Nikki Fried, Floridas agriculture commissioner and candidate for Democratic nomination for governor, praised the ruling in a tweet.

Freedom from uncomfortable truths is not freedom its ignorance. Limiting speech of businesses and educators is not freedom its censorship. Attacking diversity is not freedom its oppression. I welcome Judge Walkers ruling in defense of freedom of speech in our state.

Thats where the science fiction show comes in.

In the popular television series Stranger Things, the upside down describes a parallel dimension containing a distorted version of our world. Recently, Florida has seemed like a First Amendment upside down. Normally, the First Amendment bars the state from burdening speech, while private actors may burden speech freely. But in Florida, the First Amendment apparently bars private actors from burdening speech, while the state may burden speech freely, Walker wrote.

Now, like the heroine in Stranger Things, this court is once again asked to pull Florida back from the upside down.

The law, referred to in the ruling by its initials, IFA, bars employers from conducting workplace trainings that allegedly promulgate eight disfavored concepts. For example, that:

Walker concluded that, in addition to its constitutional flaws, the measure violates the Florida Civil Rights Act of 1992, patterned under Title VII of the Civil Rights Act of 1964. Both ban employment discrimination based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status.

In the end, defendants suggest that there is nothing to see here. They say the IFA does nothing more than ban race discrimination in employment. But to compare the diversity trainings plaintiffs wish to hold to true hostile work environments rings hollow. Worse still, it trivializes the freedom protected by Title VII and the FCRA to suggest that the two are the same, he wrote.

Walker rejected the states argument that the law restricts conduct, not speech that is, forcing employees to attend training sessions. He reasoned that the law forbids only mandatory attendance at trainings endorsing the viewpoints that the law deems unacceptable employers could require workers to read a book complaining about woke culture, for example, but not endorsing critical race theory.

Worse still, a nonprofit corporation devoted to promoting the idea that white privilege exists could not hold a required meeting at which it endorses the concept of white privilege. But a nonprofit holding the opposite view could freely hold meetings criticizing the concept of white privilege, Walker wrote.

The bottom line is that the only way to determine whether the IFA bars a mandatory activity is to look to the viewpoint expressed at that activity to look at speech. Plainly, the IFA regulates speech, he continued.

He elaborated in a footnote:

The plaintiff companies intend the trainings to send a message about their values. And people would understand as much. Plaintiff companies incur significant costs to hold these trainings, not just the cost of paying someone to conduct them but also the cost in lost productivity from every employee halting work and attending. Given the high financial cost of holding a mandatory training, it is very likely that outsiders would interpret holding such trainings as sending a message about the companys priorities.

Walker rejected the states argument that Title VII, the federal law banning workplace discrimination with respect to compensation, terms, conditions, or privileges of employment, might pose an unconstitutional restriction on speech.

That prohibition on conduct includes a bar on requiring people to work in a discriminatorily hostile or abusive environment. In turn, to be sure, it can be mostly speech that creates this environment, but only when such speech is both objectively and subjectively offensive and when it is sufficiently severe or pervasive, Walker wrote.

He cited the example of a white worker dressing in a gorilla suit to mock Black employees the day before Juneteenth. (It happened.)

The IFA is the inverse. It targets speech endorsing any of eight concepts and only incidentally burdens conduct. Even the slightest endorsement of any of the eight concepts at any required employment activity violates the statute; the IFA requires no evidence that the statement be even subjectively offensive. Nor does the IFA require that the statement create a severely or pervasively hostile work environment. Thus, the IFA, by design, provides no shelter for core protected speech.

The state claimed the authority to prevent employers from foisting speech that the state finds repugnant on a captive audience of employees.

Walker respinded: Not so. The First Amendment does not give the state license to censor speech because it finds it repugnant, no matter how captive the audience.

And even assuming the IFA serves a compelling government interest like prohibiting discrimination it is not narrowly tailored. In large part, this is because the FCRA already prohibited much of what defendants claim the IFA aims to prohibit. For example, a diversity and inclusion training could be so offensive, and so hostile to white employees, that it could create a hostile work environment. That is already illegal as both parties acknowledge.

Many people would object to the concept that members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin, Walker noted.

Of course, the IFA bans much more: such as suggesting that white privilege exists or that people should consider another persons race or sex when interacting with them . In other words, even assuming some concepts are proscribable which they are not the IFA still prohibits the endorsement of many widely-accepted ideas, he wrote.

In sum, the IFA sweeps up an enormous amount of protected speech to ban a sliver of offensive conduct that exists somewhere between the trainings plaintiffs wish to hold and what the FCRA already bars. It is, to borrow a phrase from defense counsel, self-evident. The IFA is not narrowly tailored. And so, the IFA violates the First Amendment.

The state argued it would be OK under the law to discuss critical race theory as an objective concept without endorsing it. (This is where Kant and Nietzsche come in, via a footnote.) But, as a practical matter, an employers discussion of these concepts no matter how objective it may be will invariably lend credence to them, Walker responded.

The IFA is designed to exorcise these viewpoints out of the marketplace of ideas Gov. DeSantis went so far as to call it the STOP WOKE Act at a press conference with children waving anti-critical race theory signs. It thus comes as no surprise that permissible discussion of these concepts turns on objectivity an inherently vague term that fails to give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, Walker wrote.

Accordingly, as this objectivity standard commands the entire statute, the IFA is impermissibly vague in violation of the Due Process Clause of the Fourteenth Amendment.

Read the rest here:
DeSantis loses another First Amendment fight, this one over 'Stop Woke Act' - Florida Phoenix

Earlier this year, Virginia Commonwealth University banned students with fewer than 12 earned credits from joining fraternities and sororities. (Postmodern Studio / Shutterstock.com)

by Zach Greenberg

When FIRE asks universities to protect students free speech rights, weve gotten our fair share of outright denials, curt rejections, and shameless ghosting. But rarely does a public university suggest the First Amendment doesnt really apply to them. Allow us to present Virginia Commonwealth Universitys response to FIREs letter urging VCU to end deferred recruitment.

On Aug. 1, VCU banned students without 12 credits earned at the university from joining fraternities and sororities. FIRE warned the university that deferred recruitment violates students freedom of association, explaining in our July 26 letter that students have the fundamental right to join campus groups. Freedom of association is enshrined in the First Amendment, which protects the right of the individual to pick his own associates so as to express his preferences and dislikes, and to fashion his private life by joining such clubs and groups as he chooses.

Our argument is simple: Students are adults, bestowed with the full array of First Amendment rights, and fully capable of affiliating with a wide variety of organizations on and off campus. If VCU students are allowed to work full-time, play Division I athletics, and devote their energies to more than 500 other campus groups, common sense dictates they should also be able to rush a fraternity or sorority.

Not so, says VCU. According to the university, our letter relies on cases that are not controlling in the Fourth Circuit the United States Court of Appeals for the Fourth Circuit a federal court whose rulings are binding on all state universities in Virginia. VCU claims that none of the cases FIRE cites deal with requirements a university places on students to be eligible to join a fraternity or sorority or other student organization.

Were pretty sure SCOTUS is binding on all states and, by extension, the public universities of those states, like VCU.

Lets check the tape: First, we cite Healy v. James, the seminal United States Supreme Court case establishing the expression and associational rights of student groups. Were pretty sure SCOTUS is binding on all states and, by extension, the public universities of those states, like VCU.

Next, we have Gay Alliance of Students v. Matthews, a case from the Fourth Circuit holding that a universitys denial of recruitment privileges violates students First Amendment rights. In Matthews, the university denied recognition to a student group, Gay Alliance of Students, because, in part, affiliation of individuals with homosexual activist organizations may have adverse consequences to some individuals involved.

The Fourth Circuit firmly rejected this rationale, finding that The very essence of the First Amendment is that each individual makes his own decision as to whether joining an organization would be harmful to him, and whether any countervailing benefits outweigh the potential harm.

VCU cannot ban students from associating with campus groups.

The university that lost the case? Virginia Commonwealth University. In the Fourth Circuit.

Seems like that would be applicable to VCU arbitrarily determining what groups its students can join today. One need not be a lawyer to understand how precedent works.

The dozen other cases we cite see our letter for yourself build the argument that VCU cannot ban students from associating with campus groups. Students have the right to join groups disfavored by the university, such as fraternities and sororities at VCU. As stated in Matthews, VCU cannot prevent students from joining groups merely because doing so may have adverse consequences to some individuals involved.

Whats next? Will VCU ban students who are bad at board games from the chess club? Will it ban unathletic students from playing intramural sports? Will it ban uncreative students from art societies or lactose intolerant students from the Alliance of Milk Drinkers? There is no First Amendment exception for university administrators coercing students for their own good, as courts have decried such paternalistic restrictions on students rights for more than 60 years. Irony abounds as VCU first-semester and transfer students surrender their First Amendment rights upon entering the state boasting the motto Thus Always to Tyrants.

Afford all your students the opportunity to join every campus group.

VCU promised a more detailed response to FIRE by the end of the month and asked if we have anything to add. We are content to rest on the binding legal precedent in our initial letter cases we urge VCUs legal team to read and then apply to its unlawful ban on students joining campus groups.

Beyond that, we have nothing to tell VCU but this: Save yourself the embarrassment of explaining to a judge how Virginia Commonwealth University is not bound by courts in the Commonwealth of Virginia. Afford all your students the opportunity to join every campus group. Uphold the First Amendment by ending deferred recruitment.

FIRE defends the rights of students and faculty members no matter their views at public and private universities and colleges in the United States. If you are a student or a faculty member facing investigation or punishment for your speech,submit your case to FIRE today. If youre faculty member at a public college or university, call theFaculty Legal Defense Fund24-hour hotline at 254-500-FLDF (3533).

More:
Does the First Amendment apply to Virginia Commonwealth University? The public university doesn't seem to think so. - Foundation for Individual Rights...

From a decision last week by the Washington Court of Appeals in Sehmel v. Shah, written by Judge Lisa Worswick, joined by Acting Chief Judge Anne Cruser and agreed with on this point by Judge Bernard Veljacic:

Appellants argue that the act of not wearing a mask communicates a political message, and is therefore entitled to the protections of the First Amendment. We disagree.

Although the First Amendment forbids restrictions on speech, federal case law has long recognized that the First Amendment protects more than the "spoken or written word." "'Speech' includes nonverbal conduct if the conduct is 'sufficiently imbued with elements of communication.'"

In deciding whether conduct may constitute speech, thereby implicating the First Amendment, courts examine whether (1) the person intended to convey a message, and (2) whether it was likely that a person who viewed the conduct would understand the message. The United States Supreme Court rejected the idea that any conduct may be labeled as speech whenever the person engaging in the conduct intends to express or communicate an idea. The expression must be "overwhelmingly apparent" and not simply a kernel of expression. The fact that "'explanatory speech is necessary is strong evidence that the conduct at issue is not so inherently expressive that it warrants protection' as symbolic speech" [indirectly quoting Rumsfeld v. FAIR (2006)].

[A]n extensive line of federal cases has established that the choice to wear a mask is not expressive conduct because "there are several non-political reasons why one may not be wearing a mask at any given moment." Stewart v. Justice (S.D. W. Va. 2021). See Minnesota Voters All. v. Walz (D. Minn. 2020) (holding that an order requiring face coverings did not target conduct with a significant expressive element); Denis v. Ige (D. Haw. 2021) (same); Justice (holding that failing to wear a mask is not expressive conduct because "failing to wear a face covering would likely be viewed as inadvertent or unintentional, and not as an expression of disagreement with the Governor."); Antietam Battlefield KOA v. Hogan (D. Md. 2020) (holding that wearing a mask could be viewed as a means of preventing the spread of COVID-19, not as expressive any message).

We apply the same analysis here and hold that wearing or not wearing a mask is not sufficiently expressive so as to implicate First Amendment protections. While an individual may choose to wear, or not wear, a mask as a way to make a political statement, the subjective intent of the person engaging in the conduct is not determinative. Here, there is a host of reasons why a person may not be wearing a mask. Therefore, not wearing a mask is not "overwhelmingly apparent" as communicating a political message. Rumsfeld.

UPDATE: Sorry, messed up the headline; it at first said "Mask Ban ," but of course this is a mask mandate. Don't know what neurons crossed in my head for that one . Thanks to commenters Michael P and ah.clem for the correction.

View original post here:
Mask Mandate Doesn't Violate the First Amendment Right to Engage in Symbolic Expression - Reason

Its never a good sign when a government launches a policy and instantly decrees that criticism of that policy is not allowed. Its happening in the US right now. This week President Biden signed a bill which, among other things, will pump billions of dollars into the renewable-energy sector. And woe betide the American citizen who queries the bill. Pity the American voter who wonders out loud if it might not be the best idea in the world for an advanced economy like Americas to become increasingly reliant on whimsical wind and solar power. For the Biden administration has already said that seeding doubt about renewables is unacceptable, and might even need to be silenced.

Its called the Inflation Reduction Act. It will do many things, including shake up elements of Americas tax system and lower the cost of prescription drugs. It is also, in the words of Forbes, the most comprehensive US initiative to mitigate climate change yet. It promises to plough $369 billion into energy security and climate-change reduction programmes over the next decade. Renewables will get a massive boost. The White House predicts that, thanks to this act, the US will have 950million solar panels and 120,000 wind turbines by 2030. And it is apparently every Americans duty to nod uncritically along with this revolution in renewables, because any expression of doubt about it could be bad for public health.

That chilling decree came from Gina McCarthy, the White Houses national climate adviser. In June, as this bill was wending its way through the Senate, Ms McCarthy gave an interview in which she called for a crack down on climate-change misinformation, as one headline put it. Theres nothing new in green types dreaming of silencing their opponents, of course. For decades the eco-movement has cynically branded critics of climate-change alarmism deniers and insisted they be deprived of the oxygen of publicity. But what is striking about McCarthys authoritarian disdain for climate-change misinformation is that she says she wants to chase down not only those who supposedly deny the science, but also those who question government policy.

McCarthy says denialism has moved on. Now its not so much denying the problem [of climate change], she says; rather, its seeding doubt about the costs associated with [green energy] and whether they work or not. So weve gone from science denialism to what? Political denialism? Policy denialism? Fossil-fuel companies are using dark money to fool the public about the benefits of clean energy, she says. And apparently, seeding doubt about clean energy is equally dangerous to [climate-change] denial. Asked if such doubts pose a threat to public health, in that they might hamper officialdoms plans to go green, McCarthy said: Absolutely. The solution to such health-harming scepticism? We need the tech companies to really jump in, she said. That is, the social-media giants must do more to thwart the policy deniers.

Welcome to the era of Gina McCarthyism, where officials insist that certain ideas are just too dangerous for public life. It is really worth thinking about the magnitude of McCarthys intervention. As the bill that Biden signed this week was being pored over and discussed by the American peoples elected representatives, this official from the White House was saying that any questioning of clean energy policy is equally dangerous to outright climate-change denial. As the Wall Street Journal points out, the shift from obsessing over science denialism towards fretting about policy denialism represents a move to censorship phase two which is shutting down debate over climate solutions. In problematising discussion about a particular policy, at the exact time that that policy was being weighed up by elected representatives, McCarthy was enforcing a chilling effect on the democratic process.

McCarthys call on Big Tech to jump in raises serious questions about the circumvention of the First Amendment. To the envy of many of us outside observers, the American government is forbidden from restricting freedom of expression. But private companies, on the platforms they own, face no such restraints. They can delete content, hide controversial ideas, unperson people. And its clear that some in the Biden administration are keen to outsource the authoritarian instincts that they are not allowed to act on to their likeminded friends in Silicon Valley. The social-media overlords are increasingly doing the censorious bidding of US government officials intervening in debates on everything from Covid to clean energy. Perhaps those conservative scholars who say Big Tech companies behave as state actors when they censor at the behest of government, and therefore should be sued under the First Amendment, are right.

It isnt just Gina McCarthy. Many in the green elite now openly talk about policy denial. Policy denial is when someone accepts that climate change is happening but [denies] that theres anything that can or should be done, says one observer. Scientific American says modern-day climate denial includes oppos[ing] policy measures to confront the problem. It gives as an example of policy denial Bjorn Lomborgs belief that poverty and access to safe food and drinking water need to be addressed before climate action is even considered. So even to question the prioritisation of climate change above all other issues, even to say Lets fix poverty first, is to be a denialist. This is a blatant effort to demonise criticism, scepticism and debate, which should be the lifeblood of every democracy worth the name.

Eco-censorship has always been fundamentally political. Even when greens said they were only going after people who question the science, really it was an ideological clampdown on heretics who dare to question the hysterical claims and harmful policies of the climate-change lobby. Now, however, its clearer than ever that this is political censorship. Out has gone the handwringing over science denial, in has come the demonisation of policy denial that is, of politics itself. Bidens new bill is not all bad. For one thing it will help to boost the nuclear industry, by investing in both existing nuclear plants and newer, more advanced reactors. But the billions for renewables are questionable. The entire idea of advanced societies turning to unpredictable, unreliable renewables is questionable. And people must be free to say so. It isnt denialism to question government policy its democracy.

Brendan ONeill is spikeds chief political writer and host of the spiked podcast, The Brendan ONeill Show. Subscribe to the podcast here. And find Brendan on Instagram: @burntoakboy

To enquire about republishing spikeds content, a right to reply or to request a correction, please contact the managing editor, Viv Regan.

View original post here:
The green threat to the First Amendment - Spiked