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Heres where the qualified-immunity jurisprudence really goes off the rails. At one point, courts would follow a two-step process: First, did such a right exist? Second, was that right clearly established at the time? Then, in its 2009 decision in Pearson v. Callahan, the Supreme Court unanimously ruled that the two-step process was no longer mandatory, freeing the lower courts to decide the factors in whatever order they chose. Unsurprisingly, more than a few courts opted to simply figure out whether something was clearly established at the time rather than rule upon the deeper constitutional question. The result, as critics like Judge Don Willett have observed, is not just constitutional stagnation, but a catch-22 process where some rights never get clearly established by federal courts at all.

Thats what the Tenth Circuit opted to do in this case. We do not consider, nor opine on, whether Mr. Frasier actually had a First Amendment right to record the police performing their official duties in public spaces, the panel concluded. We exercise our discretion to bypass the constitutional question of whether such right even exists. In doing so, we are influenced by the fact that neither party disputed that such a right exists (nor did the district court question its existence). And because we ultimately determine that any First Amendment right that Mr. Frasier had to record the officers was not clearly established at the time he did so, we see no reason to risk the possibility of glibly announc[ing] new constitutional rights in dictum that will have no effect whatsoever on the case.

So, heres the end result if the Tenth Circuits decision stands: Since the panel ruled that filming the police wasnt a clearly established right when Frasier did it in 2014, the officers in that encounter will receive qualified immunity and defeat Frasiers civil rights lawsuit. And because the Tenth Circuit declined to clearly establish such a right in this casethanks to the officers litigation tactic to not dispute its existenceother Denver police officers could violate other Coloradans First Amendment right to film them, and then claim qualified immunity again if theyre sued for it. Constitutional stagnation indeed.

Frasier urged the court to reassess how lower courts determine whether something is clearly established and overturn the Tenth Circuits narrow interpretation of it. The qualified-immunity doctrine was created to prevent officers from being held unexpectedly liable based on constitutional rules they neither knew nor should have known existed, he told the court, quoting a 1982 Supreme Court case. The officers here all testified that they knew they were violating [Frasiers] rights. Their training, department policies, and precedent all underscored that reality. Whatever the outer boundaries of qualified immunity may be, this case is far beyond them.

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The Supreme Court Will Decide If the First Amendment Grants the Right to Film Cops - The New Republic

In 2018, the Board of Trustees of the Houston Community College System (HCC), a nine-member elected body that governs a network of community colleges in the greater Houston, Texas, area, officially censured one of its own members for "inappropriate conduct" and for acting in a fashion "not consistent with the best interests of the College or the Board." According to that member, the censure vote caused him mental anguish and violated his right to freedom of speech. The U.S. Supreme Court will hear oral arguments in the matter this fall.

The case is Houston Community College System v. Wilson. David Buren Wilson was an elected member of the HCC Board of Trustees who strongly objected to some of the board's decisions, including the vote to fund a campus abroad in Qatar. He made his displeasure known by speaking out in the local media, publishing a website that cataloged his criticisms, orchestrating a robocall campaign against the HCC, hiring a private investigator to investigate his fellow board members, and suing the board itself. After the board censured him, he also sued on free speech grounds.

In April 2020, Wilson prevailed before a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, which said that "a reprimand against an elected official for speech addressing a matter of public concern is an actionable First Amendment claim."

But that ruling did not sit well with eight other5th Circuit judges, who argued that a full sitting of the court should have reheard the case and reached the opposite result. In particular, Judge Edith Jones, joined by Judges Don Willett, James Ho, Kyle Duncan, and Andrew Oldham, faulted the three-judge panel for turning the First Amendment on its head. "The First Amendment was never intended to curtail speech and debate within legislative bodies," Jones wrote. The HCC board, in other words, had every right to issue "a censure against this gadfly legislator."

As Jones put it, "fellow legislators may strike hard verbal blows, and all's fair when they exercise corporate authority to censure or reprimand one of their members; such actions are not a violation of the First Amendment, but its embodiment in partisan politics."

Ho wrote separately to further emphasize his objections to the three-judge panel's mishandling of the free speech principles involved in the case. "The First Amendment guarantees freedom of speech, not freedom from speech," he wrote. "It secures the right to criticize, not the right not to be criticized." Ho then effectively told Wilson to suck it up and stop being such a crybaby. "Leaders don't fear being booed," he wrote. "And they certainly don't sue when they are."

A majority of the U.S. Supreme Court may well heed those dissenting 5th Circuit voices when the Court considers the case this fall. After all, as the HCC points out in its principal brief, "some public speech by an individual legislator may well provoke a public censure by the body's current majority, speaking in the name of the institution itself. When it does, both statements are part of the cycle of speech and counter-speech that the First Amendment seeks to foster, not constrain."

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Does the First Amendment Shield a Government Official From Being Censured by His Colleagues? - Reason

Edward Si says his First Amendment rights were violated. School administrators say he didn't have the right materials and student government reps didn't communicate.

NORFOLK, Va. An Eastern Virginia Medical School student is suing the school, claiming student government leaders and school administrators violated his First Amendment rights.

In December 2020, Edward Si applied to create a student organization advocating for single-payer healthcare, but he says student government leaders denied it because it was "based on an opinion."

On Tuesday, Si and advocacy group FIRE - The Foundation for Individual Rights in Education - filed a lawsuit in federal court against EVMS.

EVMS student government leaders approved Si's proposed chapter of Students for a National Health Program the next day, on Wednesday.

"I really wanted this club, I believe my rights were violated," Si told 13News Now. "I want to show that we do want to address the issue of healthcare disparities. I believe my organization is in full accordance with the mission of the school and its values, so honestly, I wasn't expecting this."

According to the lawsuit, the Student Government Association denied the student organization by telling Si in an email: "SGA does not want to create clubs based on opinions, political or otherwise, and the mission and goals of your club do not describe what we believe to be necessary or sustainable for a club."

"It wasnt a mistake; I think it was clear they didnt want my viewpoint," Si said. "Quite simply, the debate on healthcare inequality and policy is a political one, you cant avoid the politics within it."

Si then worked with FIRE to talk with school administrators. FIREsent a letter on February 2, arguing: "This viewpoint-based rejection of [Students for a National Health Program] violates EVMSs obligations as a public school bound by the First Amendment and must be reversed."

EVMS Vice President and General Counsel Stacy Purcell responded on February 17, writing: "The proposed club was not denied in any way based on viewpoint or to infringe on free speech or freedom of association, but instead based on the standards set forth in the Criteria for Approval of a New Student Organization. The SGA found that there was incompleteness of ideas, goals and sustainability measures, matters that are considered for every application. The proposed student group also failed to submit a constitution in accordance with the standards. However, the group was invited to reapply and may do so at any time."

FIRE responded on March 15, contesting Purcell's statements. FIRE sent the student group's constitution, saying it was included in the original application.

FIRE also said the SGA didn't tell Si the rationale for denial had to do with missing materials or information, writing: "Instead, the SGA expressly premised its denial on "clubs based on opinions, political or otherwise" and doubts about whether the groups "mission" was "necessary."

Si said he proceeded to reapply.

"I attempted to fix it, I resubmitted the application and they did not look at it," Si said.

A FIRE press statement says EVMS did not respond to the second letter.

An EVMS spokesperson said a school administrator offered to personally meet with Edward Si in the spring to "help him ensure he had all the necessary support documents for the application but [Si] declined that offer."

Si said the administrator told him SGA leaders do not make decisions about student club applications after October in the academic year, which he believed to be a new requirement created after his original application, so he declined the meeting as he felt benchmarks were changing.

"I wasnt going to give up without a fight, quite simply," Si said. "This is a big issue to me, Im very passionate about it."

New SGA leaders approved Si's club on Wednesday, a day after the lawsuit was filed.

The EVMS spokesperson said student government leadership transitions each year and the previous student leaders forgot to remind new leaders that Si's student organization applications were still pending.

The new SGA leaders acted on both Si's proposal and another proposal Wednesday, according to EVMS.

"My understanding is that there was no intent to abridge anyone's First Amendment rights, but rather, that the application had not included all the necessary support," the spokesperson told 13News Now.

Despite the approval of his student organizations, Si said he and FIRE will push forward with the lawsuit until EVMS changes "unconstitutional policies" that allow student government leaders to deny clubs because of their beliefs.

Looking back on the past few days I believe they did the right thing," Si said of EVMS leadership. "I really hope they continue to do the right thing moving forward, allowing students to promote their ideas."

No EVMS administrator was made available to answer questions from 13News Now.

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An EVMS student sued the school after a healthcare reform student organization was denied. A day later, it was approved. - 13newsnow.com WVEC

COLUMBUS, Ohio, Aug. 19, 2021 /PRNewswire/ --Isaac Wiles & Burkholder, LLC (Isaac Wiles), a full-service law firm in Columbus Ohio, is proud to announce that thirteen of their attorneys have been recognized as Best Lawyers in America2022 in Columbus, OH and their Managing Partner, Mark Landes, has been named "Lawyer of The Year" 2022, First Amendment Law, in Columbus by Best Lawyers, the prominent legal peer review and rating organization.

Isaac Wiles Best Lawyers in America 2022 includes the following attorneys and the specialized practice areas they are recognized for:

Donald C. Brey

Administrative / Regulatory LawCommercial LitigationLitigation - First Amendment

David M. Whittaker

Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization LawLitigation Bankruptcy

Maribeth Meluch

Commercial LitigationLitigation - Intellectual Property

Bruce H. Burkholder

Construction LawLitigation - Real EstateReal Estate Law

Gregory M. Travalio

Consumer Law

Timothy E. Miller

Corporate Law

William J. Browning

Elder Law

Jeffrey A. Stankunas

Employment Law - ManagementLabor Law - ManagementLitigation - Labor and Employment

Christopher J. Geer

Family Law

Frederick M. Isaac

Family Law

Thomas L. Hart

Land Use and Zoning LawLitigation - Land Use and ZoningReal Estate Law

Mark Landes

Litigation First Amendment, "Lawyer of the Year 2022"Litigation - Labor and EmploymentLitigation - Municipal

Philip K. Stovall

Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization LawLitigation Bankruptcy, "Ones to Watch 2022"

Recognition byBest Lawyers is based entirely on peer review in the legal industry. Their methodology is designed to capture, as accurately as possible, the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. Best Lawyers employs a sophisticated, conscientious, rational, and transparent survey process designed to elicit meaningful and substantive evaluations of the quality of legal services. Recognized attorneys have earned the respect of their peers within their specialized practice areas.

Additional recognitions are also awarded to individual lawyers with the highest overall peer-feedback for a specific practice area and geographic region. Only one lawyer is recognized as the "Lawyer of the Year" for each practice area specialty and location.

Isaac Wiles holds a unique position among Ohio law firms. Built to serve the needs of middle-market businesses as well as closely held companies and high-income individuals, our full-service firm leverages strong ties to Ohio's legal and business community. Always approachable, honest and hard-working, we're true to our Midwestern roots. The result is a firm with an entrepreneurial mindset, a collaborative team of sharp thinkers that's always invested in our clients' success.

SOURCE Isaac Wiles Law Firm

http://www.isaacwiles.com

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Thirteen Isaac Wiles Attorneys Recognized as Best Lawyers in America 2022 and Managing Partner, Mark Landes is Recognized as "Lawyer of The...

(Reuters) - A free-speech advocate and Pennsylvania attorney has renewed his bid to block the adoption of a now-revised anti-harassment and discrimination rule for lawyers, which is set to go into effect Wednesday.

Attorney Zachary Greenberg filed an amended complaint Thursday in Philadelphia federal court following the Pennsylvania Supreme Court's adoption of an amended Rule 8.4(g).

Greenberg had successfully challenged the state's adoption of the American Bar Association-backed Rule 8.4(g) last year -- a federal judge blocked its implementation in December, finding it would chill an attorney's right to free speech outside of the courtroom or a pending case.

After abandoning an appeal to the 3rd U.S. Circuit Court of Appeals in March, the state amended Rule 8.4(g) in July.

"It's different, but it still suffers from the fatal flaws that caused the earlier version to violate the First Amendment," said Ted Frank, whose Hamilton Lincoln Law Institute is representing Greenberg.

Greenberg has asserted that the rule's broad scope puts him unfairly at risk of violations due to his job as a program officer for the non-profit Foundation for Individual Rights in Education, which involves presenting and writing about offensive and derogatory language, including racial and homophobic slurs.

Even if the state promised not to pursue disciplinary charges against him, Greenberg said he would have to censor himself out of fear of inadvertently offending someone, who in turn might file a complaint against him.

The old version of the rule said attorneys must not "by words or conduct, knowingly manifest bias or prejudice, or engage in harassment or discrimination," while the new rule prohibits attorneys from "knowingly [engaging]" in that conduct. The new Rule 8.4(g) also further defines the practice of law, harassment and discrimination.

Despite the revisions, the new Rule 8.4(g) restricts freedom of speech and expression at speeches, debates and CLE presentations, Greenberg alleges. The new rule also has "novel, expansive, and vague definitions" of harassment and discrimination that are not tied to state or federal law, his new complaint says.

U.S. District Judge Chad Kenney in December held that the old Rule 8.4(g) "will hang over Pennsylvania attorneys like the sword of Damocles." He criticized the rule as promoting a "government-favored, viewpoint monologue" that "creates a pathway for its handpicked arbiters to determine, without any concrete standards, who and what offends."

The defendants in the case are members of the state Supreme Court's disciplinary board and its prosecutorial arm, the office of disciplinary counsel. Spokespersons for the Administrative Office of Pennsylvania Courts, which is representing the defendants, declined to comment.

The case is Greenberg v. Haggerty, et al, U.S. District Court for the Eastern District of Pennsylvania, No. 20-cv-03822.

For Greenberg: Adam Schulman of Hamilton Lincoln Law Institute

For defendants: Michael Daley and Megan L. Davis of Administrative Office of Pennsylvania Courts

Read More:

Pa. drops appeal over attorney conduct rule that drew free speech activists' ire

Pennsylvania turns to 3rd Circuit in fight over ABA-backed professional rule

Judge blocks anti-harassment rule for Pa. lawyers, citing its 'constant threat' to free speech

Pennsylvania lawsuit sets up fight over anti-harassment rule for lawyers

David Thomas reports on the business of law, including law firm strategy, hiring, mergers and litigation. He is based out of Chicago. He can be reached at d.thomas@thomsonreuters.com and on Twitter @DaveThomas5150.

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Pa. attorney sues to stop resurrected anti-discrimination rule - Reuters