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First Amendment

By Debra Cassens Weiss

June 8, 2021, 3:04 pm CDT

Image from Shutterstock.

The American Civil Liberties Union, long known for its support of the First Amendment, is dealing with internal dissension over defense of hate speech.

The ACLU has defended the free speech rights of conscientious objectors, labor organizations, civil rights activists, the Nation of Islam, the Ku Klux Klan and Nazis. But that hard-line free speech stance is coming under fire.

On the one side are those who say the First Amendment is used as a tool of the powerful, and the ACLU should not defend free speech rights of the far right, the New York Times reports. On the other side are those who say the ACLUs role is to defend speechno matter how offensive.

The New York Times noted that the ACLUs budget nearly tripled to more than $300 million after the 2016 election of former President Donald Trump. But the group still has only four free speech lawyers on staffthe same number that it employed a decade ago.

New staff members hired as money flowed in worked inside their policy silos, the New York Times said, focused on issues like immigration, transgender rights and racial justice.

The ACLU adopted new guidelines in free speech cases after its Virginia organization defended the right of far-right groups to march in Charlottesville, Virginia, in August 2017. The Unite the Right rally turned violent, and a neo-Nazi who plowed his car into a crowd of racism protesters killed a paralegal.

The new guidelines suggest that lawyers considering free speech representation of groups whose values are contrary to our values should weigh how such a case could give offense to marginalized groups.

Anthony Romero, executive director of the ACLU, told the New York Times that the ACLU still backs First Amendment principles. The group has argued that drivers should be allowed to display a Confederate flag on specialty license plates, and it has criticized Facebook and Twitter for banning Trump from their sites.

But some of the groups stances surprised longtime supporters, the New York Times reports. When then-Judge Brett M. Kavanaugh was nominated to be a U.S. Supreme Court justice, the ACLU broadcast an ad strongly suggesting that Kavanaugh was guilty of sexual assault. Critics saw the stance as partisan activity by a group that submits amicus briefs to the Supreme Court, according to the New York Times.

One transgender ACLU lawyer supported stopping circulation of a book suggesting that the number of teenage girls identifying as transgender was part of a craze. Another staff member complained that Title IX proposals on handling of campus sexual assault investigations favored the accused, surprising those who support due process protections.

Romero isnt bothered by the contradictions.

Im asked, Are we a free speech or racial justice organization? And I answer, Yes. We are a domestic human rights organization, Romero told the New York Times.

The rest is here:
ACLU is split by internal debate over First Amendment support for hate speech - ABA Journal

A lot of people want to make statements with their homes.

But a sharply divided federal appeals court Tuesday rejected arguments that a property owners First Amendment rights were violated when plans for a mansion were rejected in tony Palm Beach.

The 2-1 decision by a panel of the 11th U.S. Circuit Court of Appeals stemmed from a 2013 decision by longtime Palm Beach resident Donald Burns to tear down a 10,063 square-foot oceanfront home and replace it with a larger mansion with a mid-century modern design, according to the ruling.

According to Burns, the mid-century modern design communicated that the new home was clean, fresh, independent, and modern a reflection of his evolved philosophy of simplicity in lifestyle and living with an emphasis on fewer personal possessions, the rulingsaid. It also communicated Burns message that he was unique and different from his neighbors.

But Palm Beachs architectural review commission rejected the plan in 2016, spurring Burns to take the dispute to federal court. He argued, in part, that the rejection violated his First Amendment rights.

A federal district judge sided with the town, prompting Burns to go to the Atlanta-based appeals court. And in a 70-page majority opinion and a 66-page dissent, appellate judges Tuesday sparred about Burns claims and First Amendment issues ranging from tattoos to Jeffersons Monticello home.

Judge Robert Luck, in a majority opinion shared by Judge Ed Carnes, wrote that the proposed mansion was not expressive conduct protected by the First Amendment and pointed to issues such as a wall and landscaping that would have blocked the home from public view.

One day, we may even find some residential architecture to be expressive conduct, Luck wrote. But Burns proposed new mansion is not Monticello or Versailles, no matter how much the dissenting opinion wants to compare it to those historic homes. Its just a really big beachfront house that cant be seen, located on a quiet residential street in Palm Beach, Florida.

But dissenting Judge Stanley Marcus referred to numerous famous architectural sites and drew contrasts with court precedents about protecting the First Amendment.

As I see it, the majoritys resolution of this case cannot easily be squared with well-settled law recognizing the First Amendments protection of artistic expression in all of its forms, Marcus wrote. An analysis of this kind would yield the odd conclusion that a tourists drunkenly obtained tattoo is art protected by the First Amendment, while Philip Johnsons Glass House is not; coin-operated devices by virtue of which a customer could sit in a booth, insert a coin and . . . watch a live dancer, usually nude, are protected, Monticello is not; anodyne elevator music is protected, the Empire State Building is not. These distinctions seem to me to be indefensible.

That statement drew a retort from Luck.

To dispel any lingering confusion, we emphasize again that we are not deciding whether residential architecture can ever be expressive conduct protected by the First Amendment, Luck wrote. We have not decided, as the dissenting opinion says, that Philip Johnsons Glass House isnt expressive conduct but tattooing is; we have not decided that Jeffersons Monticello isnt protected under the First Amendment but nude dancing is; and we have not decided that the Empire State Building doesnt meet (a test in a U.S. Supreme Court case known as Texas v. Johnson) but elevator music does. Not at all.

Marcus also asserted that the architectural review commission hated the proposed design of the mansion.

The question in this case is whether a government commission created by the Town of Palm Beach with the Orwellian moniker ARCOM may prevent Burns from expressing his philosophy and taste through the architecture of his home and create a work of art on land he owns solely because a majority of the members of the commission do not like the way it looks, Marcus wrote.

That also drew a retort from Luck in a footnote.

The dissenting opinion uses the name ARCOM for the architectural review commission and then calls the name it uses Orwellian, the footnote said. If by Orwellian the dissenting opinion means any government agency that administers regulations impacting our lives, then the architectural review commission is as Orwellian as the state board of therapeutic massage, the local dog catcher and every one of the alphabet soup of departments and agencies and bureaus in Washington, D.C.

The Palm Beach Daily News, citing a deed,reported in Octoberthat Burns, a telecommunications entrepreneur, sold his home for $28 million. That came six months after the appeals court heard arguments in the case, and Tuesdays ruling did not address a sale of the property.

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Republished with permission from News Service of Florida.

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Read more:
First Amendment arguments rejected in mansion fight - Florida Politics

A major Senate report regarding the January 6 attack on the Capitol has found that neither the FBI nor the Department of Homeland Security (DHS) gave sufficient warning of any potential violence that day, having dismissed online threats as "First Amendment-protected speech."

The bipartisan report revealed there had been a number of failures from law enforcement and government agencies in the run-up to the insurrection, which saw hundreds of Donald Trump supporters and far-right extremists storm the building in Washington, D.C. Five people died during the violence.

One of the main criticisms in the report was that neither the FBI nor the DHS deemed posts on social media and message board sites calling for violence at the Capitol as credible.

Representatives from both agencies testified that they believed much of the rhetoric expressed online prior to January 6 was "First Amendment-protected speech" of limited credibility.

Neither the DHS Office of Intelligence and Analysis (I&A) nor the FBI issued intelligence specific to January 6, despite being aware of the threat of extremist violence emanating from social media and online posts.

Late on January 5, the FBI's Norfolk Field Office did circulate a Situational Information Report that warned people were traveling to Washington, D.C. for "war" at the Capitol the following day, but did not provide any formal intelligence assessment.

"When asked how I&A did not identify any of the social media posts calling for attacking the Capitol prior to January 6, one DHS I&A official cautioned that social media is 'nuanced' and that it can be difficult to distinguish between mere rhetoric and overt threats," the report states.

During previous testimony, Jill Sanborn, then-assistant director of the FBI's Counterterrorism Division, said she did not believe that the FBI was aware of specific conversations on social media calling for violence in the lead-up to January 6.

"Under our authorities, because being mindful of the First Amendment and our dual-headed mission to uphold the Constitution, we cannot collect First Amendment-protected activities without sort of the next step, which is the intent," Sanborn said.

The report is also critical of the United States Capitol Police department (USCP) for not fully conveying the potential scope of the violence being planned that day, despite its Intelligence and Interagency Coordination Division (IICD) being aware of calls for violence at the Capitol on January 6.

These threats included a "plot to breach the Capitol, the online sharing of maps of the Capitol Complex's tunnel systems, and other specific threats of violence," the report states.

"Yet, IICD did not convey the full scope of known information to USCP leadership, rank-and-file officers, or law enforcement partners."

Officers on the day were also let down by poor management and planning, including USCP's Incident Command System breaking during the attack, leaving frontline officers "without key information or instructions as events unfolded."

Some senior officers were also found engaging and fighting with those trying to storm the Capitol instead of giving orders.

"USCP leadership never took control of the radio system to communicate orders to frontline officers," the report found.

The report was initiated by Senators Gary Peters (D-MI) and Rob Portman (R-OH), Chairman and Ranking Member of the Homeland Security and Governmental Affairs Committee, and Amy Klobuchar (D-MN) and Roy Blunt (R-MO), Chairwoman and Ranking Member of the Committee on Rules and Administration.

"The events of January 6 were horrific, and our bipartisan investigation identified many unacceptable, widespread breakdowns in security preparations and emergency response related to this attack," Peters said in a statement.

"Our report offers critical recommendations to address these failures and strengthen security for the Capitol to prevent an attack of this nature from ever happening again."

See the article here:
FBI Thought Threats to Capitol Before 1/6 Were 'First Amendment-Protected' - Newsweek

HARRISBURG, Pa. (WHTM) It is a yearly tradition at the State Capitol. Gun-toting Second Amendment supporters rally for their right to carry firearms. However, just above them on the Capitol balcony, the First Amendment right of the lieutenant governor was all but ignored.

They brought their flags. They brought their firearms.

Now is the time for the states to rise up and defend the Second Amendment, Rep. Stephanie Borowicz (R), Clinton/Centre Counties, said. They continuously try to shove down our throats gun control.

They brought their feistiness.

30 years ago there were more pro-gun democrats in this building than there were republicans. The whole party has swung into the nutball realm, Kim Stolfer, of Firearms Owners Against Crime, said.

But, the states second ranking democrat is also armed with flags and feistiness.

Theyre making their statement today and Im making mine and I just wish it didnt have to be this way, Lt. Governor John Fetterman (D), said.

Lt. Governor Fetterman is flying the gay pride flag on his balcony.

All were advocating for is equal protection under the law regardless of who you choose to love or how you identify, Fetterman said.

Gays, who can be fired for their sexual orientation, do not receive equal protection in PA. Neither do Fettermans flags. Republican lawmakers inserted language into last ears budget that no flags can fly from that balcony. The GOP points out that Governor Wolf did sign off on it.

Thats specious reasoning they know, well they attach it as a rider to the budget and not gonna jam up the entire budget over something like this, Fetterman said.

Fettermans flag was up at 9 a.m. By 1 p.m. a state employee has come to take it away. Fetterman says hes lost more than ten flags in the same manner. But where do they go?

Theyre confiscated and I dont know the enchanted land of missing flags, I dont know, I dont know where, Fetterman said.

Perhaps there is irony that heavily armed ralliers worry about guns being taken away, which has never happened, while right above them flags are seized whenever theyre flown.

They have the constitutionally protected rights and Im saying great, give that to members of this community, too, Fetterman said.

A bill to let firearm owners carry concealed weapons without a license is expected to move this week.

See more here:
Gun Advocates Rally for 2nd Amendment Rights; LT Governor Says His 1st Amendment Rights Ignored - ABC27

Jun 07, 2021

Columbus, OH Robert Alt, president and chief executive officer of The Buckeye Institute, issued the following statement after the Supreme Court of the United States announced it had denied cert in Thompson v. Marietta Education Association, which called for an immediate end to laws that force public-sector employees to accept a unions exclusive representation.

Unfortunately, the Supreme Court passed on the opportunity to hear Mrs. Thompsons case and resolve the conflict noted by the U.S. Court of Appeals for the Sixth Circuit, which stated that Ohios take-it-or-leave-it system of exclusive representation directly conflicts with the principles announced in Janus v. AFSCME. Despite todays decision, the high court will have other opportunities to rule on the important question of forced union exclusive representation and recognize the First Amendment Rights of public employees across the country.

The Buckeye Institute was the first organization to file lawsuits calling on courts to end compelled exclusive representation following the Janus decision, and was representing Mrs. Thompson. The Buckeye Institute is also representing Professor Kathy Uradnik of Minnesota whose case is pending in the United States Court of Appeals for the Eighth Circuit.

A public high school Spanish teacher in Marietta, Ohio, Mrs. Thompsons case was initially filed on June 27, 2018, in the United States District Court for the Southern District of Ohio, with its motion for preliminary injunction filed on July 23, 2018. The case was appealed to the United States Court of Appeals for the Sixth Circuit on February 18, 2020. The Buckeye Institute filed its petition for writ of certiorari with the United States Supreme Court on January 22, 2021. Cert was denied on June 7, 2021.

Mrs. Thompsons Piece in The Columbus Dispatch: Marietta teacher tells her union No ms!

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Link:
U.S. Supreme Court Will Have Another Opportunity to Recognize First Amendment Rights of Public Employees - Buckeye Institute