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(The Center Square) The American Civil Liberties Union (ACLU) of Iowa calls Iowas new law that increases penalties for unlawful protest an intimidation tactic.

Gov. Kim Reynolds signed SF 342, known as the Back the Blue Act, into law on June 17. It makes rioting a felony offense, increases penalties on other destructive behaviors, establishes qualified immunity, and increases due process protections for law enforcement, the Governors officesaid.

A lot of our concern about this particular law comes into play is in the ways that we think that it will inhibit people from exercising their First Amendment rights through enhanced penalties through new offenses. And through this, this notion that police cant be held accountable if they abused their power, ACLU of Iowa Executive Director Mark Stringer told The Center Square.

Examples of the enhanced penalties include upping the penalty for unlawful assembly from a simple to an aggravated misdemeanor, he said. That takes it from punishable to up to 30 days in jail to punishable for up to two years.

The law also creates another way to commit this kind of offense. A protester who joins a lawful assembly but then remains after the person knows that it has become an unlawful assembly could face those charges, which Stringer said isnt on its face unconstitutional.

Another ACLU concern is the provision that grants civil liability immunity for drivers who exercise due care and injure a person participating in a protest even if its a lawful protest. That gives immunity if a driver hits a protestor, he said.

Why are we creating a law that basically gives special treatment to a driver who happens to be interacting with a protest as opposed to any other gathering? The whole thing is odd, frankly, Stringer said.

The ACLU of Iowa will wait and see how the law is enforced to determine its next steps, he said.

Our kind of approach is always you have to wait and see how this unfolds. We are not hopeful that it wont impact peoples protesting rights, Stringer said.

On its face, the plain text of the law doesnt criminalize lawful protest, he said.

But we also know just from last summer, that police sometimes respond to lawful protest by arresting protesters with little or no basis, Stringer said.

That happened with several Black Lives Matter protestors and some journalists. The criminal charges were later dropped by prosecutors, or their cases ended in acquittals because there was no evidence against them, he said.

The state has enhanced penalties for protestors and given police less accountability by codifying broad immunity from state law claims brought by people who are harmed by police action, he said.

It comes directly in response to thousands of protesters, most of whom were peaceful, law-abiding, Stringer said.

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ACLU of Iowa Says 'Back the Blue Act' Could Inhibit First Amendment Rights - The Iowa Torch

After the Norman City Council, the LGBTQ community and their advocates celebrated a ban on conversion therapy passed this week, questions remain about how to enforce the ban and whether the city has stepped beyond its purview.

The Transcript obtained more information to explore how courts have viewed bans in other states and the enforcement process the city will follow.

As defined by the citys ordinance, conversion therapy is an attempt by a licensed provider to alter a persons sexual orientation or gender identity.

The ordinance does not ban mental health counseling to affirm and provide coping mechanisms to accept ones gender identity or sexual orientation, nor is it a ban on therapies designed to prevent unlawful conduct or unsafe sexual practices.

Conversion therapy is often undefined and unspecific, according to the International Rehabilitation Council for Torture Victims (IRCT). However, the council lists corrective violence and electric shocks as techniques in conversion therapy.

Electroconvulsive therapy, aversive treatments using electric shocks or vomit-inducing drugs, exorcism or ritual cleansing (often involving violence while reciting religious verse), force-feeding and food deprivation, forced nudity and forced isolation and confinement are some of the more extreme examples of conversion therapy, IRCT found.

The organization maintains that even talk or psychotherapy can become a repeatedly traumatic event, the website reads. Conversion therapy is practiced in at least 69 countries, according to IRTC.

Churches are exempt from Normans ban due to freedom of religion provisions in the First Amendment, the citys legal staff previously told the council. The city could find no other bans across the nation that included religious organizations.

Conversion therapy or reparative therapy has been promoted in religious right groups like the Family Research Council and The American Family Association, fundamentalist church associations and Exodus, International.

Is the citys conversion ban enforceable? It was a question raised during the June 29 council meeting, and City Attorney Kathryn Walker described the process to The Transcript.

The first avenue of enforcement is pursuing a criminal misdemeanor charge, but the process would have to rely heavily on witness testimony. The complaint would be filed in municipal court.

Because this would be a misdemeanor and would, by its very nature, likely not occur in the presence of an officer, the complaint would have to be a citizen-filed complaint, Walker said. In these situations, the person filing the complaint comes to the Police Department and fills out a docket for Municipal Court, which outlines what happened, when it happened, etc.

A prosecutor will determine if there is sufficient cause to charge the accused, she said.

Non-traffic charges in Municipal Court rely heavily on witness testimony, she said. We would not typically require recordings, financial statements, etc. to determine whether to file a charge. In the criminal context, the provider cannot be required to testify likely, the complaining witness would have to testify in order for the City to meet its burden of proof.

Testimony aside, other evidence can be introduced, but much of the case comes down to witness credibility, Walker said.

It depends on the type of case sometimes, there is photographic or video evidence, such as assault and battery cases, neighbor issues, etc., and often there are other witnesses, Walker said. In this type of case, there could be an audio recording or some other evidence related to the therapy, but if the witness is credible, other evidence may not be necessary to obtain a finding of guilty.

The other option for enforcement is through civil action.

This means the City would file a lawsuit and ask the Court to order the provider to stop engaging in the practice of conversion therapy, Walker said. Although the burden of proof standard is different in the civil context, the Court would require some kind of evidence, likely testimony, that the provider has engaged in the prohibited conduct, it has caused irreparable harm, etc.

Though courts have ruled on conversion therapy bans in other municipalities, the legal fate of Normans ordinance is still up in the air due to a lack of precedent in the 10th Circuit Court of Appeals.

Weve got the 9th Circuit Court of Appeals and other circuits that have upheld [conversion therapy] bans, because they looked at the therapy as professional conduct, not speech, Walker said. Then you have the 11th Circuit Court of Appeals say, Well no, we think this speech, and if its speech, then its protected by the First Amendment. So therefore, any ordinance impacting that speech or regulating that speech would be subject to strict scrutiny, which is the highest level of scrutiny the court gives a case, and its very hard to survive strict scrutiny.

The 9th Circuit, which encompasses California, ruled that the law banning conversion therapy was constitutional despite challenges.

The law much like Normans ordinance banned the practice of conversion therapy on minors to protect their physical and psychological well-being, and only prevented regulated licensed mental health providers not churches or religious institutions from practicing conversion therapy.

The evidence falls far short of demonstrating that the primary intended effect of [the conversion therapy ban] was to inhibit religion, Circuit Judge Susan Graber wrote in the opinion.

The Supreme Court in 2017 declined to hear the challenge to the 9th Circuits ruling, allowing the ban to remain in place. The courts decision set a precedent that if a challenge solely to a ban itself arises, the ban will more than likely remain intact.

In a 2019 decision, the 4th Circuit, which is more conservative than Oklahomas 10th Circuit, ruled that a Maryland law banning conversion therapy on minors does not impede on the First Amendments protection of freedom of speech.

According to the judge, prohibiting the practice of conversion therapy on minors doesnt prevent therapists from expressing their personal views about conversion therapy to their minor clients it just prevents them from practicing it.

Most recently, in November 2020, the 11th Circuit which encompasses Florida struck down Boca Raton and Palm Beach Countys ordinance that banned conversion therapy. But unlike the 9th Circuits ruling, the 11th Circuit ruling looked at conversion therapy as speech, and ruled a ban is a violation of the First Amendment.

Circuit Judge Britt Grant, a Donald Trump-appointed judge, said while enjoining the laws allows speech that many find concerning even dangerous, the First Amendment does not allow communities to determine how their neighbors may be counseled about matters of sexual orientation or gender.

When it comes to Normans conversion therapy ban, the absence of precedent in Oklahomas 10th Circuit represents the biggest unknown.

What we dont know is how the 10th Circuit would look at this ban, Walker said. If they look at (conversion therapy) as conduct, the ban would stand, I believe. But, if they look at it as speech, we may have some issues, because it would be a First Amendment issue.

So thats really where we are, and the 10th Circuit just hasnt answered that question, so this could be challenged. It can be challenged on its face, or it can be challenged as an applied setting so if we were to file charges against someone, that could be a challenge based on how we apply the ordinance.

A challenge to the ordinance on its face is highly unlikely, Walker said, but a challenge once the ordinance is being enforced is more likely.

I dont know if someone will want to spend the time, money and effort to overturn it on its face and to challenge it on its face they may, but I havent heard a specific threat of that, she said. I do think in an applied situation its probably more likely. But were ready in any event. Were going to be careful how we apply it, so well see how it turns out.

Alex Gerzewski, spokesman for the Oklahoma Attorney Generals Office said the question of whether a city acts outside its purview under these circumstances has not been addressed by an AG opinion.

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How the city will enforce, uphold conversion therapy ban - Norman Transcript

If 2020 was a year of racial reckoning for the United States, 2021 is shaping up to be one of backlash.

A concerted campaign against efforts to address persistent racial inequality has consolidated under the watchword of critical race theory (CRT). Once a relatively obscure academic framework for examining the ways in which racism was embedded in US laws and institutions, CRT has been recast by rightwing activists as an omnipresent and omnipotent ideology, one that is anti-American, anti-capitalist and anti-white.

The campaign has been astonishingly effective. Legislation seeking to limit the teaching of CRT or related concepts has been introduced in 22 states in 2021, according to an analysis by the African American Policy Forum, a thinktank led by one of the founders of critical race theory, Kimberl Crenshaw. Arkansas, Idaho, Iowa, Oklahoma, Tennessee and Texas have all passed anti-CRT laws, and Florida, Georgia and Utah have passed resolutions. Legislators in Alabama and Kentucky have already pre-filed anti-critical race theory bills for the 2022 legislative sessions.

Heated political battles over education have flared up repeatedly throughout US history, according to Adam Laats, a professor of history and education at Binghamton University who said he was nevertheless surprised by how many local and state laws are getting involved.

Latts compared the anti-CRT movement to a similar spate of confused outrage and legislative action against the theory of evolution in the 1920s, when 21 states debated 53 bills seeking to ban the teaching of evolution. Five states Oklahoma, Florida, Tennessee, Mississippi and Arkansas ultimately passed laws or resolutions, paving the way for the 1925 Scopes trial, in which the American Civil Liberties Union (ACLU) defended a high school science teacher who had been charged with violating Tennessees anti-evolution law.

Now the ACLU is gearing up for a new iteration of that earlier fight. Emerson Sykes, an ACLU staff attorney who specializes in first amendment free speech issues, spoke to the Guardian about the plans to fight back against what the rights group has deemed a nationwide attempt to censor discussions of race in the classroom.

This interview has been edited for length and clarity.

Many people are confused about the extent to which these laws against CRT fit within the first amendment. Are these laws constitutional?

I would start by saying that this is much beyond a legal issue. Its a social, cultural, political issue. Its about our country reckoning with racism and other aspects of its past and present. There has been a concerted effort to try to censor speech about race and gender in public schools, and this is a bigger problem than just whether any particular bill is constitutional or not.

The other point is that these bills, as much as they are part of a unified effort, vary widely. Some of them cover government agencies, some of them cover contractors, some of them cover higher education. Almost all of them cover K-12 education. But theres a huge number of proposals, and there have been different iterations. Now were seeing these types of debates happening in school boards across the country, and in many ways, I think thats where were actually going to see the impact on children and in classrooms.

But to get to your question. We do think that some of the bills are vulnerable to litigation and the constitutional challenge. The particulars of each bill indicate which claims are most likely to be successful, but we think that there are first amendment claims, potential vagueness claims, and potential equal protection claims basically, racial discrimination claims in some of these cases, as well.

Just to illustrate the point, the first amendment claims that you might bring on behalf of a public employee, on behalf of a university professor, on behalf of the universitys students, on behalf of a K-12 teacher, or on behalf of a K-12 student are all distinct, first amendment doctrinal areas.

There are very strong first amendment protections for academic speech in higher education. Some of those protections have been recognized for K-12 teachers, but to a much lesser degree. There are also cases that recognize K-12 students right to receive information, and those are relatively narrow cases. But we do think theres some good precedent at least acknowledging that K-12 students have a first amendment interest in receiving information through curriculum.

Ive been struck by how quickly this movement went from Donald Trumps executive order banning anti-racism trainings to dozens of bills being introduced and statewide school boards passing resolutions against CRT. Does this stand out to you?

The activity at the state legislature level was dramatic during a state legislative session that many people have characterized as legendarily bad in terms of voting rights, protesters rights, transgender rights, all manner of things. And in some ways I think these race censorship laws snuck under the radar for a lot of folks.

Those who have been pushing these bills have been incredibly successful, and its our aim, in collaboration with other national organizations and local organizations in the various states, to try to push back in an equally coordinated and strategic way. My particular role as a first amendment litigator is trying to figure out where and when and how we can bring federal litigation, and were actively exploring that. But this was a massive campaign that has borne fruit in very dramatic fashion and so its going to take a massive campaign to try to push back against that as well.

It does seem like this campaign arose very quickly without much in the way of organized opposition. What can you tell me about the coalition that is coming together now to oppose this movement?

Theres been a lot going on and weve all been stretched thin, but its true that not enough attention was paid to it. But its worth noting that a lot of the coalition building happened around Trumps executive order, and there was successful litigation that struck that order down in the ninth circuit that was brought by Lambda Legal. So its true that were on the back foot a little bit, but we do have a very positive federal appellate court ruling on this already.

A lot of the folks who were active on the executive order are also now working together the usual suspects such as the NAACP Legal Defense Fund and the Lawyers Committee for Civil Rights Under the Law.

I hesitate to get too much into detail of any particular legal strategy, but I think its definitely fair to say that multiple organizations are actively exploring litigation. My own opinion is that its important to do it sooner rather than later. We need to be strategic in bringing the right case in the right court with the right claims. But these curricular decisions are also being made over the next month or so in preparation for the fall. Ideally, wed like to get courts to weigh in to block these things before the impact is really felt in the classroom, either in K-12 or in higher ed.

That said, one legal decision in one state is not going to be the solution, or the whole solution. I think that public advocacy and public education around this are also key in terms of spreading the news and making people aware of these developments.

Youve been very explicit in talking about this movement as an effort to censor.

The irony is that so many of these legislators styled themselves as free speech advocates. But what we know from the legislative history, from the public statements, from the research reports put out by the proponents of these types of bills, is that they are uncomfortable with discussions about race and gender in public schools. They would prefer that we not ask hard questions about why and how people have been treated in this country, or be critical of our country. I think they have a very distorted sense of what is healthy for kids to learn and what patriotism looks like in education.

Theres outright censorship but then theres also a chilling effect. As we look for people to cite these laws as the reason for cancelling a class or changing a curriculum, that will be an obvious enforcement of the law and we can bring a legal challenge. But the other consequence of the law is that people are going to self-censor and be hesitant to engage in these types of discussions because they dont want to run afoul of these really vague and really broadly written laws. And that kind of chilling effect often can go unnoticed. Thats why its even more important that we bring a strong legal challenge, because we know that the impact is actually far broader than well be able to see in any particular enforcement action.

The language in these bills is often quite vague and seemingly neutral. But many of the lawmakers have been explicit in saying that they want to ban a particular school of thought critical race theory. Will that make any difference when it comes to court battles?

Where law or policy is unclear, courts will look to the legislative history to try to get the intent, and I think a lot of these laws are unclear. Those statements by legislators are going to be useful in terms of first amendment, and viewpoint and vagueness issues, but also around equal protection and racial discrimination. None of these laws on their face say they only apply to Black people or only apply to white people or anything like that, but we think that there have been, at least in some places, some hints of racial animus and discrimination in statements by legislators. We think that can potentially play into the into the lawsuits.

I recently spoke with a historian who compared this current movement to the anti-evolution laws in the 1920s, which the ACLU played a major role in opposing, culminating in the Scopes trial. Do you think thats a fair comparison?

The ACLU has been fighting this kind of thing for over 100 years. There are those who doubt our commitment to the first amendment, but they often leave out our work on this type of case, which were really dedicating a lot of resources to.

It is in the ACLUs DNA to try to fight government censorship, whether its 1920 or 2020.

Continue reading here:
The ACLU on fighting critical race theory bans: Its about our country reckoning with racism - The Guardian

Less than six months ago I lambasted the bloodlust rhetoric of U.S. Rep. Lauren Boebert. I worried that leaders like the congresswoman could be engaged in a competitive spiral to prime their base.

At the time, I wrote that those leaders were cultivating resentment, anger and hate. I forgot to include violence. But that is where we find ourselves less than a half year later.

The rhetoric has not gotten better, but rather descended into casual references to treason and execution.

First, Pearson Sharp, a reporter from the farther-right-than-Fox One America News Network (OAN), went on a riff against anyone who contradicts the assertion that the 2020 presidential election was rigged. Specifically, he speculated that hundreds or thousands of people were engaged in a coup against the presidency, labeled each a traitor, and noted that a good solution for dealing with such traitors: Execution.

Only a few days later, Garrett Flicker, the current Denver Republican Party chairman, made a Facebook post asking whether teachers should be charged with treason?

When one response challenged whether Flicker meant to imply the death penalty would be appropriate, Flicker wrote radical ideas that lead to revolts and mass violence always lead to death before equivocating and stating that fines and prison could be utilized instead.

Maybe Flicker did not understand the irony of his statement?

Notwithstanding the specious merit of his assertion history is replete with peaceful radicals like Gandhi and Martin Luther King Jr. and Nelson Mandela, to name a few he would substitute state-sanctioned killing or vigilante justice as an answer.

And that is precisely the danger.

The same logic Sharp and Flicker espoused led Kyle Rittenhouse to kill two men and injure another at a protest in Kenosha, Wisconsin. As prosecutors in Rittenhouses case wrote, the teenager willingly and intentionally put himself in violent situations in Wisconsin that do not involve him in order to commit further ats of violence.

It is the same rhetorical gasoline John Eastman, U.S. Rep. Madison Cawthorn and Donald Trump Jr. poured on the mobs nascent fire prior to the Jan. 6 insurrection. Rudy Giuliani literally called for trial by combat.

That is the pot that Sharp and Flicker have stirred. One in which Americans justify killing each other. Could anything be less American as we celebrate the Fourth of July?

Thankfully, Sharp received widespread condemnation and multiple replies challenged Flickers comments. Unfortunately, it was not universal. QAnon chat rooms were filled with glee after Sharps comments and saw it as proof that mass executions were right around the corner. Replies to Flicker included Indeed, Definitely, and Surely.

I doubt Sharp or Flicker wish to actively engage in the killing of other Americans. Rather, they seem caught up in an ugly concoction of machismo, vitriol, rhetoric and one-upmanship.

But given their public following, simply giving voice to such violence could be tantamount to the actual act. They have helped create echo chambers were the less restrained fringes feel it is not only acceptable to engage in violence against those with whom they disagree, but patriotic.

Should people die in the aftermath of their comments and I believe that will be the case eventually even the First Amendment will not protect people like Sharp or Flicker. You cannot yell fire in a crowded theater and you cannot repeatedly call for the execution of fellow citizens.

That is probably why OANs attorneys forced Sharp to walk back his statement. And maybe why Flicker offered a wet-rag argument that other punishments would be acceptable.

The country is polarized and politically divided. But our leaders and opinion makers must refrain from their reliance on the language of violence. If they do not, it will have tragic consequences.

Mario Nicolais is an attorney and columnist who writes on law enforcement, the legal system, health care and public policy. Follow him on Twitter: @MarioNicolaiEsq

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Nicolais: Calling for the execution of political opponents should never be condoned - The Colorado Sun

Stephen Davis: Eye on Education

Two hot-button issues have recently emerged in the ongoing debate surrounding academic freedom and free speech in public schools.

One issue centers on concerns related to the inclusion of critical race theory in American school curricula (e.g., systemic racial discrimination in society). The other centers on the U.S. Supreme Courts recent ruling in favor of a former high school cheerleader who was punished by her school for posting profane comments about the school on Snapchat while she was off school grounds.

Both examples contain important implications for how public schools manage controversial issues.

Before addressing the merits of each, it is important to note that academic freedom and free speech are closely related legal concepts that have somewhat different implications for universities and public schools. The modern concept of academic freedom which emerged from 19th century German universities rests upon a broad intellectual landscape of ideas unconstrained by narrow partisan or political interests.

The U.S. Supreme Court stated, Our nation is deeply committed to safeguarding academic freedom, which is of transcendental value to us all and not merely to the teachers concerned. . . . The First Amendment does not tolerate laws that cast a pall of orthodoxy over the classroom.

However, the application of academic freedom in public schools is less clear and continues to be a topic of debate practically, politically and in the courts. While the U.S. Supreme Court has largely avoided ruling on academic freedom cases in public schools, lower courts have provided considerable guidance. In general, lower courts have protected local school boards and their authority to make curricular decisions influenced by community values and needs.

Moreover, courts have ruled that public schools are subject to state legislative authority and must conform to the education laws and regulations enacted by the state.

Importantly, while cases relating to academic freedom typically focus on the behaviors and practices of professional educators, cases relating to freedom of speech (more generally) have rendered important implications for both educators and students. In recent years, court cases related to freedom of speech in public schools have leaned in favor of more student expression rather than less.

Nevertheless, this distinction is not razor-sharp, and the rights of public school students are not unlimited.

In the Supreme Court case involving the high school cheerleader, the content of the students speech was profane and objectionable. However, it did not rise to the level of a material disruption to the school. No one was threatened or slandered. Moreover, the student posted her comments from home on her personal computer on a widely used social network.

Justice Stephen Breyer wrote, . . . sometimes it is necessary to protect the superfluous in order to preserve the necessary. Breyers comment echoed the courts earlier ruling that, students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.

The debate over critical race theory, also tethered to the First Amendment, is amplified most by differing political perspectives. Importantly, state legislatures and local school boards possess sole authority to determine what is taught and how. Individual schools, teachers, administrators and labor unions have no independent authority to ignore or modify state laws and local board policies.

The ideas that define critical race theory are not new. To varying degrees, states and local school districts have been addressing elements of the theory for nearly 50 years. There are important arguments made by advocates and opponents of the theory that ultimately must be processed through rigorous public debate and policy-making processes.

While I believe that to the extent possible, public schools ought to be included in the open marketplace of ideas, it is particularly important that students are not sheltered from controversial ideas that are based upon thoughtful arguments and alternative interpretations.

After all, a central mission of public education is to help students become independent, open-minded, ethical and creative thinkers.

Stephen Davis is a career educator who writes a column that publishes every other Wednesday in the Daily Republic. Reach him by email at[emailprotected].

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Eye on Education: Addressing First Amendment controversies in public schools - Fairfield Daily Republic