Mediaboss Marketing

A federal judge ruled Monday that North Carolina's beer bureaucrats violated the Constitution when they tried to ban a beer because they disliked the art on the label.

The offending label was wrapped around bottles of Maryland-based Flying Dog Brewery's Freezin' Season Winter Ale, and appears to show a tiny appendage between the legs of a Ralph Steadman cartoon character. Last year, the North Carolina Alcoholic Beverage Control (ABC) Commission told Flying Dog that the beer could not be sold in the state due to the "inappropriate" and "in bad taste" label design.

But there's no accounting for taste in the First Amendmentindeed, the most fundamental aspect of the constitutional protections afforded to free speech is that government officials can't prohibit expression or art simply because they dislike it.

On Monday, Judge Terrence Boyle confirmed as much, writing that prior court rulings regarding commercial speech "should have placed any reasonable state liquor commissioner on notice that banning a beer label based on its content would violate the First Amendment."

"The challenged regulation is facially unconstitutional because it is overbroad and otherwise not narrowly tailored to achieve North Carolina's proffered substantial interest," Boyle concluded.

Jim Caruso, CEO of Flying Dog, calls the ruling "a resounding victory for the First Amendment."

"With the First Amendment seemingly under attack from all sides, it is heartening to see court decisions like this that protect the freedoms that it embodies," says Caruso, who is a financial supporter of Reason Foundation, the nonprofit that publishes this website. "The First Amendment is the last defense against authoritarian and arbitrary government and it must be protected against any and all threats."

The North Carolina ABC argued in court documents that its beer label regulations are meant to protect shoppers' eyes from vulgar and sexual content. If Flying Dog wants to sell its beer in North Carolina, the ABC argued, then "it can do so in ways other than showing a naked cartoon figure with a naked cartoon penis."

A surprising amount of the legal back-and-forth in the case revolved around the question of whether the cartoon figure on the label is, in fact, sporting a tiny member between its legs. While the label "shows a small protrusion that is where one would expect to find a penis on most male humans," it is "otherwise not at all identifiable as one. There are no constituent parts of a penis, no testicles, and it is not engorged. It is a small nub that merely suggests a penis. It is certainly not sexually explicit," the brewery's lawyers wrote in court documents.

At one point, Flying Dog's lawyers entered a "super-zoom of the 'penis'" into the court record.

"It may not have all the bells and whistles, but it's a penis," attorneys for the North Carolina ABC wroteyes, reallyin response.

But Boyle noted that the state's rules are, in fact, far more expansive than merely policing sexual or pseudo-sexual content. And the judge sided with Flying Dog's contention that those rules are not only vast but also inconsistently applied.

AsReasonhas previously covered, the North Carolina ABC has blacklisted about 230 beer and wine brands since 2002 for having labels or names that offended the board's sensibilities. Ironically, the North Carolina ABC reportedly told Utah-based Wasatch Brewery that its "Polygamy Porter" could not be sold in the state because "polygamy is illegal." But the board also banned a beer named "Kissing Cousins" despite the factthat it isliterally legal to marry your first cousinin North Carolina.

Boyle concluded that the North Carolina ABC's rules prohibiting speech that regulators deem "undignified, immodest, or in bad taste" could give the state "vast" power over the type of advertising allowed.

"Indeed, the Supreme Court has recently reaffirmed 'the bedrock First Amendmentprinciple [that] Speech may not be banned on the ground that it expresses ideas that offend,'" wrote Boyle, citing the landmark 2017 Supreme Court ruling Matal v. Tam.In that case, the court found that that the federal Patent and Trademark Office (PTO)could not prevent all-Asian dance-rock band The Slants from trademarking its name, even if the name violated PTO rules against disparaging "persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute." Restrictions on commercial speech must serve a "substantial" government interest and must be "narrowly drawn," the court held inMatal.

It's obviously silly for alcohol regulators to be concerned with what images appear on beer labels, but Monday's ruling leaves no doubt that it's unconstitutional too.

Read the original:
The First Amendment Protects the Right To Put a Tiny Penis on a Beer Label - Reason

The question came before the Court in Bd. of Ed. v. Pico, and four Justices (led by Justice Brennan) took the view that "local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books." Four other Justices (led by Chief Justice Burger) expressly rejected this view (except in the narrow situation where the disagreement was based on pure partisanship, for instance if a Democrat-run board removed books because they were written by Republicans or because they praised Republicans). And the swing vote, Justice White, expressly refused to opine on this issue:

The plurality issue[s] a dissertation on the extent to which the First Amendment limits the discretion of the school board to remove books from the school library. I see no necessity for doing so at this point.

[This case] poses difficult First Amendment issues in a largely uncharted field. We should not decide constitutional questions until it is necessary to do so, or at least until there is better reason to address them than are evident here.

Justice White concurred with Justice Brennan's opinion solely as to the propriety of remanding for a trial on whether the school board removed the books based on viewpoint or instead based on their being "in essence, vulgar" (which even the challengers "implicitly conceded" would be a permissible basis for removing the books, at least if they "were pervasively vulgar"). But he disagreed with Justice Brennan on the consequence of any such finding:

What about lower courts? Two federal appellate courts have characterized the Brennan opinion as expressing the view of the Court, see Monteiro v. Tempe Union High School Dist. (9th Cir. 1998) and Turkish Coalition of Am., Inc. v. Bruininks (10th Cir. 2012).

But three other federal appellate courts have disagreed, and have recognizedI think correctlythat Pico didn't resolve the issue; e.g., Griswold v. Driscoll (1st Cir. 2010):

Pico's rule of decision, however, remains unclear; three members of the plurality recognized and emphasized a student's right to free enquiry in the library, but Justice Blackmun disclaimed any reliance on location and resorted to a more basic principle that a state may not discriminate among ideas for partisan or political reasons, and Justice White concurred in the judgment without announcing any position on the substantive First Amendment claim.

Likewise with Muir v. Alabama Ed. Television Comm'n (5th Cir. 1982), which concluded that in Pico "the Supreme Court decided neither the extent nor, indeed, the existence [or nonexistence], of First Amendment implications in a school book removal case," because "[t]he Fifth Member of the Court [Justice White] voting for the judgment expresses no opinion on the First Amendment issues." And likewise with ACLU of Florida v. Miami-Dade County School Bd. (11th Cir. 2009), which noted that the view that "school officials may not remove books from library shelves 'simply because they dislike the ideas contained in those books and seek by their removal to prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion'" was "the standard that failed to attract a majority in the Pico case."

The matter, then, is not clear. Lower courts may indeed themselves decide that viewpoint-based removals of books from school libraries violate the First Amendment, and they may find Justice Brennan's opinion to be persuasive. And schools may reasonably worry that this might happen, and might conclude that it's better to avoid that litigation. (Prof. Justin Driver so suggests, in Tony Mauro's recent Freedom Forum column.) But courts and schools may instead conclude otherwise, and be more persuaded by Chief Justice Burger's dissent.

Note, by the way, that this is all just about public school library books. Decisions to remove books or topics from public school curricula wouldn't be precluded even under Justice Brennan's opinion; that opinion noted that "Respondents do not seek in this Court to impose limitations upon their school Board's discretion to prescribe the curricula of the Island Trees schools," and added (in a part that got three votes),

We are in full agreement with [the school board] that local school boards must be permitted "to establish and apply their curriculum in such a way as to transmit community values," and that "there is a legitimate and substantial community interest in promoting respect for authority and traditional values be they social, moral, or political."

Petitioners might well defend their claim of absolute discretion in matters ofcurriculumby reliance upon their duty to inculcate community values.

And the dissenting four Justices were even more firm on this point about school board control over the curriculum. (The question whether the Establishment Clause limits school authority over including religious topics or excluding topics that are perceived as antireligious is a separate matter; I'm speaking here of non-religion-related curriculum choices.)

Read more from the original source:
Does the First Amendment Bar Public Schools from Removing Library Books Based on Their Viewpoints? - Reason

NBC political director and host of Meet The Press Chuck Todd said Tuesday that leading Republicans are using First Amendment protections to appease white supremacists in America.

Look at the way the right try to weaponize the idea that DHS was going to essentially try to attempt to monitor hateful rhetoric. They want to make it seem likes its some sort of big brother, Todd said speaking to NBC reporter Garrett Haake during his daytime show Meet the Press Daily.

This is always what the right does to appease the white supremacist movement by saying, hey, free speech. Dont touch speech.

Todds comments come after a mass shooting in Buffalo, N.Y., over the weekend carried out against shoppers in a predominantly Black neighborhood. The suspect is a white teenager who had allegedly espoused white supremacist ideology in a manifesto posted online before the attack.

Leading Democrats have blamed Republicans language on immigration and race relations for bringing the fringe replacement theory into mainstream discourse.

Other critics have called on social media companies to do more to monitor and curb hateful content online.

Republicans on the House Judiciary Committee earlier this month raised concerns about Nina Jankowicz, head of the new Disinformation Governance Board within the Department of Homeland Security, blasting her as overseeing what they have described as a an Orwellian ministry of truth.

Fox Newss Tucker Carlson, one of the most influential voices in conservative media, warned on his show Monday that Democrats and President Biden would use the attack in Buffalo as a pretext to censor speech.

See the article here:
Chuck Todd: GOP using First Amendment to appease the white supremacist movement - The Hill

The defamation trial between actors and former partners Johnny Depp and Amber Heard is close to its conclusion. Both Depp and Heard have taken the stand. Right now, Heard's team is in the midst of presenting her side of the story.

Depp, widely known for his role in the Pirates of Caribbean franchise, is suing Heard, his ex-wife, for defamation over an opinion piece she wrote for The Washington Post and is seeking $50 million. Heard is also countersuing for $100 million.

Here's what else you should know about the trial.

Heard, 36, is a model and actress who starred in 2018's Aquaman. She was married to Depp, 58, from 2015 to 2016. The pair divorced in August 2016.

In December 2018, Heard wrote an op-ed for The Washington Post titled, "I spoke up against sexual violence -- and faced our culture's wrath. That has to change." She said in the article that she had become "a public figure representing domestic abuse," but didn't mention Depp's name.

Depp alleges Heard defamed him in the op-ed. During opening statements, Depp lawyer Benjamin Chew said Heard's article clearly refers to Depp, and that Heard's "false allegations had a significant impact on Mr. Depp's family and his ability to work in the profession he loved."

Benjamin Rottenborn, a lawyer for Heard, said that the First Amendment protects what she wrote. "The article isn't about Johnny Depp," Rottenborn said. "The article is about the social change for which she is advocating and that the First Amendment protects."

Rottenborn also said evidence in the trial will show that Heard did suffer domestic abuse at the hands of Depp, and it was physical, emotional, verbal and psychological.

Depp is faced with proving Heard knowingly made false claims. Heard has filed a countersuit against Depp, which will be decided as part of the trial. She's claiming Depp defamed her when his former lawyer referred to her allegations of abuse as a hoax.

Depp testifies.

Depp lost a defamation case that involved Heard in 2020. He had sued British tabloid The Sun over a headline calling him a "wife beater." Depp filed his current defamation suit in 2019, the year after she wrote the op-ed.

Heard just finished taking the stand this week. When asked about the first time Depp allegedly hit her, she described an instance when she'd asked Depp about what one of his tattoos said, and he'd replied "wino." "I just laughed because I thought he was joking, and he slapped me across the face," she said. Heard also testified that Depp sexually assaulted her shortly after they were married.

During his testimony earlier in the trial, Depp said that Depp he never struck Heard but that she displayed violence during their relationship. Depp alleged she threw a vodka bottle at his hand during an argument, cutting off a part of his middle finger.

There are some reports that Johnny Depp could take take the stand again. Heard's time taking the stand is likely over and her team will most likely continue to call more witnesses.

Both teams are expected to deliver closing arguments on May 27. After that the jury will deliberate on its decision.

According to sources, Elon Musk is no longer expected to take the stand.

More here:
Johnny Depp and Amber Heard Trial: What You Need to Know - CNET

In an execution an expert has characterized as botched, Arizona Department of Corrections personnel failed for 25 minutes to set an intravenous line in Clarence Dixons arms on May 11, 2002 before performing a bloody and apparently unauthorized cutdown procedure to insert the IV line into a vein in his groin. It was the first execution the state had carried out after a nearly eight-year hiatus following the botched two-hour execution of Joseph Wood on July 23, 2014.

Fox News media witness, Troy Hayden, reported that the execution team had trouble inserting the IV line and that Dixon appeared to be in pain and grimaced during the insertion process. He said that after about 25 minutes the execution team cut into Dixons groin to place the IV line there. Associated Press reporter Paul Davenport, who also witnessed the execution and saw the incision being made, said at the post-execution news conference that execution team members had to wipe up a fair amount of blood from Dixons groin. Taylor Tasler, a media witness from Phoenix NBC affiliate KTAR, reported that Dixon gasped after the drugs were administered, before losing consciousness.

Lethal-injection experts said the amount of time it took to set the IV line was indicative of serious problems. Its a sign of desperation (on the part of the execution team), and its a sign of an unqualified executioner, Fordham Law Professor Deborah Denno said. Austin Sarat, an Amherst College professor and author of Gruesome Spectacles: The Cultural Reception of Botched Executions in America, said the repeated efforts to place the IVs were serious problems in the execution itself. Sarat noted that Dixons execution appeared to have violated Arizonas execution protocol, which, he said, allows peripheral IV catheters or a central femoral line as determined by the Director acting upon the recommendation of the IV Team Leader but does not include a cut-down to insert an IV in the groin.

Michael Radelet, a University of Colorado-Boulder sociologist and longtime death-penalty researcher, said, I would classify it as a botch, recognizing that not everyone would agree with that. But things did not go right. Dixons execution, Sarat said, shows yet again that lethal injection is by no means a humane process.

Dixons execution reflects continuing serious problems in Arizonas execution process. Lawyers for Frank Atwood, whom the state is scheduled to put to death on June 8, 2022, reviewed 14 prior Arizona lethal-injection executions and found that IV insertion took from 7 to 54 minutes, with IV placement in half the executions taking 23 minutes or more.

Defense lawyers say that these problems are exacerbated by the lack of transparency about Arizona executions. Dixons lawyer, assistant federal public defender Amanda Bass, said [s]ince Arizona keeps secret the qualifications of its executioners, we dont know whether the failure to set two peripheral lines in Mr. Dixons arms was due to incompetence, which resulted in the unnecessarily painful and invasive setting of a femoral line. The Arizona Department of Corrections, Rehabilitation, and Reentry did not respond to media requests for information about the training of the execution team members tasked with inserting the IV.

Arizonas execution protocol was the subject of litigation after Woods botched execution, in which he reportedly gasped and snorted more than 640 times as executioners injected him with 15 doses of the two drugs used at the time. The state reached a deal in 2017 to abandon that two-drug protocol, replacing it with a single drug, the barbiturate pentobarbital. In 2020, the state settleda media access lawsuit after the U.S. Court of Appeals for the Ninth Circuit found that the media had a First Amendment right to witness executions but not to know the identity of the states drug supplier. Under that settlement, the state agreed to allow witnesses to see and hear the entirety of the execution, while keeping the identity of its drug suppliers secret.

In April 2021, a heavily-redacted invoice obtained by The Guardian showed that, in October 2020, Arizona ordered 1,000 vials of pentobarbital. Each one-gram vial cost the state $1,500, for what the newspaper described as a jaw-dropping total of $1.5 million. Two months later, another Guardianinvestigation revealed Arizona had refurbished its gas chamber and spent more than $2,000 to acquire ingredients to execute prisoners with cyanide gas, the same gas used by the Nazis to murder more than one million men, women, and children during the Holocaust.

Later in 2021, the Arizona Attorney Generals office sought to shorten judicial review in the cases of Dixon and Atwood after learning that the shelf life of the drugs it intended to use in the executions would expire before the executions could be carried out.

Atwood is challenging his June 8 scheduled execution, for which he must choose between cyanide gas or lethal injection. Atwoods lawyers argue that both methods would result in unconstitutionally cruel and unusual punishment. They point to the lengthy IV insertion process and the possibility of femoral vein access as potential sources of excruciating pain in Atwoods execution, given Atwoods spinal condition, disability, and overall frailty.

Sources

Jimmy Jenkins, Arizona struggles to administer lethal injection drugs, Arizona Central, May 18, 2022; Austin Sarat, Time, the Execution Process, and the Botched Lethal Injection of Clarence Dixon, Verdict, May 16, 2022; Jacques Billeaud, Experts: Arizona executioners took too long to insert IV, Associated Press, May 12, 2022; Jimmy Jenkins and Chelsea Curtis, Arizona executes Clarence Dixon for 1978 murder of Deana Bowdoin, Arizona Central, May 11, 2022; Navajo man executed in Arizona prison, Indian Country Today, May 11, 2022; Clarence Dixon execution updates: Ducey says execution is justice served, Arizona Central, May 11,2022.

Read the rest here:
Witnesses Report Problems Inserting IV in Arizona's First Execution in Eight Years - Death Penalty Information Center