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It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not-very nice people. So wrote Supreme Court Justice Felix Frankfurter in his dissenting opinion in United States v. Rabinowitz (1950). Albert Rabinowitz was a forger and his case involved the Fourth Amendment right to be free from unreasonable searches and seizures.

But the principle articulated by Justice Frankfurter applies with equal if not more force in First Amendment jurisprudence. Many of our most important First Amendment freedoms have been advanced in the name of hatemongers, flag burners and similar ilk.

Three examples come immediately to mind Clarence Brandenburg, Gregory Lee Johnson and Fred Phelps.

Clarence Brandenburg was a Ku Klux Klan leader who, with about a dozen other members of his hateful tribe, burned a cross before a television reporter in Hamilton County, Ohio. Brandenburg gave a speech that butchered the English language a bit, including the line: Were not a revengent [sic] organization, but if our president, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, its possible that there might have to be some revengeance [sic] taken.

Charged and convicted of violating an Ohio criminal syndicalism law, the Supreme Court unanimously reversed his conviction, finding that there is a difference between hateful ideas and unlawful incitement. The court famously declared in Brandenburg v. Ohio (1969) that the constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

The so-called Brandenburg or incitement test has protected many a political dissident or rabble-rouser through the years. It was truly a landmark free-speech precedent.

Gregory Lee Johnson was a political protestor who took part in the so-called Republican War Chest Tour in Dallas, Texas the site of the Republican presidential convention. Johnson and others protested the policies of President Ronald Reagan and some Dallas-based corporations.

While some protestors chanted America, red, white and blue, we spit on you, Johnson burned an American flag. The police arrested Johnson and charged him with violating a Texas flag desecration statute. A trial court convicted Johnson, but the Texas Court of Criminal Appeals reversed. On further appeal, the U.S. Supreme Court also ruled in Texas v. Johnson (1989) that the First Amendment protected Gregory Lee Johnsons repugnant form of political protest.

In oft-cited language, Justice William Brennan wrote: If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. Brennan and four other justices realized that by protecting the repugnant act of Gregory Johnson, they were ensuring freedom for all. This bedrock principle of the First Amendment remains a shining light in First Amendment jurisprudence.

Fred Phelps founded a group known as the Westboro Baptist Church, which somewhere along the way came upon the belief that God was killing Americas soldiers because the country tolerated and promoted homosexuality. Phelps and many of his children would travel around the country and picket near military members funerals. They would hold up hateful signs advocating their messages of intolerance.

They did so in Maryland at the funeral of slain Marine Matthew Snyder. Snyders father Albert later sued for intentional infliction of emotional distress and a federal jury agreed to the tune of more than $10 million. However, the U.S. Court of Appeals for the Fourth Circuit reversed on First Amendment grounds.

The U.S. Supreme Court agreed in Snyder v. Phelps (2011) that the First Amendment protected the awful speech of members of Westboro Baptist Church, who conveyed their hateful messages on matters of public concern but complied with police orders on distancing from the funeral.

In perhaps his most stirring passage, Chief Justice John G. Roberts, Jr. famously wrote:

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and, as it did here, inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a nation we have chosen a different course to protect even hurtful speech on public issues to ensure that we do not stifle public debate.

The First Amendment protected the likes of Clarence Brandenburg, Gregory Lee Johnson and Fred Phelps.

But thank God it does, because it also protects all of us.

David Hudson Jr. is a Freedom Forum Fellow for the First Amendment and a law professor at Belmont University who publishes widely on First Amendment topics.

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The First Amendment protects the unsavory and all of us too! - Hopkinsville Kentucky New Era

By Bethany Blankley The Center Squarehttps://www.thecentersquare.com/

A new national survey of 478 higher education institutions in the U.S. found that 9 in 10 restrict free speech in some capacity on campus but nearly half maintain policies that impermissibly restrict online speech.

The study was conducted by FIRE, the Foundation for Individual Rights in Education, a nonpartisan, nonprofit organization dedicated to defending and sustaining the individual rights of students and faculty members at American colleges and universities. These rights include freedom of speech, freedom of association, due process, legal equality, religious liberty, and sanctity of conscience.

The report, Spotlight on Speech Codes 2021: The State of Free Speech on Our Nations Campuses, analyzed the written policies related to free speech at 478 top American colleges and universities. It found that 88 percent of those surveyed maintain policies that restrict, or could be interpreted to restrict, expression.

These policies have real-world consequences, Laura Beltz, FIREs senior program officer for policy reform and author of the report, said in a statement. Students and professors around the country face punishment for speech that is clearly protected by the First Amendment or a schools free speech promises.

FIRE notes that restrictive speech policies extend beyond college campus property. With the advent of Zoom and online classes being conducted remotely, expression is being threatened online, FIRE found, in students own homes and on their own computers.

In New Jersey, a student at Stockton University faced possible suspension, a fine, and a mandatory social justice workshop after using a photo of President Donald Trump as his Zoom background while attending class online. By having a backdrop of the president, the university claimed other students said they felt offended, disrespected, and taunted. The student also posted a Patrick Henry-esque political post on Facebook in July, which prompted the university to charge the student with six policy violations, including harassment and cyberbullying, before FIREs public involvement caused the university to back down.

In June alone, 128 people came to FIRE asking for help when they believed their First Amendment rights were in jeopardy, the organization says.

In Colorado, a University of Colorado-Denver email policy bans students from sending or storing emails with messages that could be considered offensive."

The policy directs students not to use email to send any offensive or otherwise inappropriate matter. Listed examples include offensive comments about a range of topics, including race, gender, political beliefs, and even terrorism.

Im not sure what theyre trying to target by banning offensive comments about terrorism, but in any case, expression doesnt lose constitutional protection just because it has offended someone, Beltz argues.

The policy bans hyperlinks or other references to indecent or patently offensive websites and similar materials, holding students responsible for including a link or reference in an email that someone finds indecent.

While material that meets the stringent legal standard for obscenity is not constitutionally protected, expression cant be limited merely because someone has found it indecent, Beltz adds. Under CU Denvers policy, emailing a link to Cardi Bs WAP video or even a photo of Michelangelos David would be punishable. This absurd result is impermissible at a public university.

In New York, at Fordham University, a policy bans the use of any IT resource, including those off campus, to intimidate, insult, embarrass, or harass others.

Each of the 478 policies analyzed can be found in FIREs Spotlight Database. Schools are ranked according to color, with red indicating that the institution has the most restrictive policies, and green, the least. First Amendment protections analyzed include policies related to protest, online speech, harassment, and civility.

Among them, 21 percent received an overall red light rating for maintaining speech codes that both clearly and substantially restrict freedom of speech.

More than half of red light-ranked schools are located in the District of Columbia and seven states: Alaska, Delaware, Illinois, Oregon, South Carolina, Vermont, and Wyoming.

Roughly 12 percent of institutions analyzed, a total of 56, received green light ranking for having no policies in place that compromise student expression, according to the database.

Yellow light-ranked institutions represent the majority, 65 percent, which have policies in place that prohibit, or have an impermissible chilling effect on, constitutionally protected speech.

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Report: 88 percent of universities restrict expression, nearly half restrict online speech - The Highland County Press

James Marks

Martinsburg

In recent years I've begun to wonder how our founding fathers might have drafted the Constitution differently had they known what our country, our citizens and our politicians would have become over time. Bear in mind that our Constitution is bar none, the most perfect governmental document contrived by man in the history of planet Earth, and keeping in mind that over the last two and a half centuries, we as a nation, have grown and evolved in our wisdom and learned from our mistakes to make us a more perfect union; i.e.; amendments to that same Constitution.

One thing that comes to mind is the issue of career politicians. Putting it another way, professional politicians might more accurately describe it. Productive or not, successful in accomplishing goals for the people, or not, was that the intention of the framers of our form of government? Since the period of his terms in office of public service by Franklin Roosevelt, the 22nd Amendment not withstanding, and up through occurrences more recently, it isn't uncommon for public servants to remain in office for multiple decades. This immediately bring to mind Joe Biden, now serving almost a half a century! Reflecting on President Washington's thoughts on a third term...he stepped aside to make way for a successor, proving to future generations (and his contemporary critics) his commitment to democracy rather than power. All this in remembering that initially Washington was a farmer, turned general, turned President! In lieu of present trends, I wonder if the framers might have contemplated term limits. I would doubt it considering the vast majority of Congressmen had to maintain their jobs outside of their congressional duties, so being full time politicians would have been out of the question, but I still would make one wonder.

A second thought is on how the creators of our nation might have looked on their first Amendment to our Constitution, more specifically the aspect of Freedom of the Press. Certainly there were contentious articles published in newspapers in the late 1700's and early 1800's to spark debate and maybe even dissension. Bringing that forward to today's journalistic environment and calling it contentious or debatable would be a momentous understatement. In America's press today, blatant disregard for honesty, the truth and facts are the rule, not the exception. Politically motivated, distorted and biased, and total untruths in the characterizing of facts, of quotes from words spoken, and of outcomes of actions taken by political officials is now the norm in America's press today. The Associated Press even more so exacerbates the issue. Have the printed word, radio broadcasts and television news reporting outlets not become the mouthpiece and literally an extension of a political party? And of course over time, this has been compounded and multiplied exponentially by the advent of radio and television, not to mention social media and the cell phone. And unlike the press of our colonial and founding period, the spewing of truths made into lies and lies into truth throughout media today is an occurrence on a moment by moment event that is immediately disseminated to millions of citizens. Maybe our founding fathers in their thoughts on the printing of untruths and non-facts, instituted the 1st Amendment with the thought being if given enough rope, they will hang themselves, proverbially speaking. Time will tell, I guess. But I do have to wonder had they known then what occurs today, would they have considered limits and boundaries on those freedoms, commensurate with the degree of honesty, accuracy, and the truthfulness of the articles they would present to the public?

How often today do we watch and listen to a news broadcast reported to us, particularly on a national issue, and think to ourselves, how can they be reporting that, when we know full well it to be untrue? How frequently do we open the newspaper to read an Associated Press article on the Peaceful Protest in a given metropolitan city, where in fact, a violent mob has destroyed property and peoples lives, and we are fully aware it is totally untrue, nonfactual, a blatant lie?

I reflect from the 1960's on my memory of Pravda (the Communist News Agency, i.e. propaganda machine) on how some news/information was revealed on a given subject that was so filled with untruths that it was literally comical, were it not on a subject of grave consequences. And now in today's context of what is offered up as news is so flagrantly deceitful, it is beyond comical and fringes on infuriating! My bet is that our founders are rolling over in their graves when it comes to the freedoms they have provided in this aspect of their and our First Amendment.

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Had our Founding Fathers known then what we know now - Martinsburg Journal

The Ball State University Department of Journalism recently honored Steve Key, executive director and general counsel at Hoosier State Press Association (HSPA), for his support of journalism and the First Amendment. He was chosen for the 2020 Indiana Journalism Award.

Keys advocacy on behalf of professional and student journalists has significantly advanced the First Amendment and journalism in Indiana, said Johnny Sparks, Department of Journalism chair. Through his work with HSPA and his additional activities as a legal consultant, who fields hundreds of inquiries from local newspapers and officials each year, Keys work continues improving Hoosiers lives through supporting strong professional journalism.

Keys acceptance remarks encouraged students to focus on their journalistic responsibilities of fairness and honesty in all personal and professional matters. He also stressed the significance of local journalism in democracy.

Its the local newspaper that covers the county commissioner, city council and school board. Its the newspaper that covers local events that create the social fabric of the community. If the community loses its connection its newspaper, it loses its eyes on government and the reassuring voice to each other.

In 2008, Key received the Excellence in Public Information and Education (2008) Award from the Indiana Judges Association. The Indiana High School Press Association recognized Key with the Louis Ingelhart Friend of Journalism Award in 2010.

First awarded in 1965, the Indiana Journalism Award recognizes outstanding achievements by journalists in the Hoosier state.

Continuing a 60-year legacy of honoring international leaders in journalism and strategic communication, the Department of Journalism recognized Key and nine other outstanding alumni and professionals in a virtual awards ceremony on December 1.

Other award recipients include:

Watch the event: https://www.youtube.com/watch?v=K-l2e3dHCd8&feature=youtu.be&fbclid=IwAR0JbCyy_FPdudFyOyRMQfeWPZqZhR_WUFrCExTKQvDUvag84jmRtlYZByA

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Ball State honors HSPA executive director for his advocacy to the journalism profession - Ball State University News

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, more First Amendment challenges to pandemic-related restrictions and whether a criminal defendant can open the door to rebuttal testimony that otherwise would violate the Sixth Amendment.

Two petitions from churches bring First Amendment claims against state restrictions related to the coronavirus pandemic. In Calvary Chapel Dayton Valley v. Sisolak, a Nevada church is challenging Gov. Steve Sisolaks series of executive orders limiting church gatherings. For example, one directive subjected casinos, restaurants, indoor amusements parks, bowling alleys, water parks, pools, arcades and more to a 50% fire-code-capacity limit, but limited places of worship to no more than 50 people, whatever their facilities size. A new directive has superseded that one, but, according to the church, still treats places of worship less well than their secular counterparts. In South Bay United Pentecostal Church v. Newsom, a California church brings a petition directly from the district court that challenges Gov. Gavin Newsoms Blueprint for a Safer Economy. Earlier this year, in two separate orders, the Supreme Court declined to grant emergency relief to the Nevada church and the California church while the litigation proceeded in the lower courts. Now the churches are asking the justices to take up the cases on the merits.

Rules of evidence protect criminal defendants from certain types of evidence in the prosecutions case-in-chief, such as evidence of a defendants violent character. However, a defendant who takes the stand and testifies to having a peaceful character opens the door to rebuttal evidence. Hemphill v. New York asks the justices to decide whether a defendant can similarly open the door to rebuttal evidence that was previously inadmissible under the Sixth Amendment, which guarantees a criminal defendants right to be confronted with the witnesses against him.

In Darrell Hemphills trial, defense counsel elicited testimony that police had found a 9 millimeter handgun, the kind of gun that killed a girl in a car passing by a fight, on a different suspects nightstand hours after the shooting. In response, the prosecution introduced that other suspects statement from an earlier plea allocution that he had a .357 revolver with him at the fight, not a 9 millimeter. The Sixth Amendment would normally require the prosecution to produce the other suspect at trial so that defense counsel could cross-examine him. However, the trial court let in the statement because Hemphill had opened the door to this evidence by creating the impression that the other suspect had the 9 millimeter. Arguing that lower courts are split on whether defendants can forfeit confrontation rights in this way, Hemphill asks the justices to review the New York Court of Appeals decision affirming the trial court and to rule that the statements admission violated the Sixth Amendment.

These and otherpetitions of the weekare below:

Torres v. Texas Department of Public Safety20-603Issue: Whether Congress has the power to authorize suits against nonconsenting states pursuant to its constitutional war powers.

Gannett Co. v. Quatrone20-609Issue: Whether a plaintiff adequately pleads breach of the duties of prudence and diversification solely by alleging that fiduciaries permitted participants in a defined contribution plan to choose, from an adequately diversified menu of investment options, to invest in an undiversified single-stock fund.

Amazon.com Inc. v. Rittmann20-622Issue: Whether the Federal Arbitration Acts exemption for classes of workers engaged in foreign or interstate commerce prevents the acts application to local transportation workers who, as a class, are not engaged to transport goods or passengers across state or national boundaries.

Hemphill v. New York20-637Issue: Whether, or under what circumstances, a criminal defendant, whose argumentation or introduction of evidence at trial opens the door to the admission of responsive evidence that would otherwise be barred by the rules of evidence, also forfeits his right to exclude evidence otherwise barred by the confrontation clause.

Calvary Chapel Dayton Valley v. Sisolak20-639Issues: (1) Whether Nevada Governor Steve Sisolaks favoring of secular over religious gatherings for example, under Directive 021, casinos, restaurants, indoor amusements parks, bowling alleys, water parks, pools, arcades and more are subject to a 50-percent fire-code-capacity limit, but places of worship are limited to no more than 50 people, whatever their facilities size violates the free exercise clause; and (2) whether the governors favoring of secular over religious gatherings violates the free speech and assembly clauses.

LSP Transmission Holdings, LLC v. Sieben20-641Issue: Whether a state law that grants an express preference to entities with an existing in-state presence to build facilities serving a distinctly interstate market discriminates against interstate commerce, notwithstanding that a few of the preferred in-state incumbents are headquartered elsewhere.

Cook Childrens Medical Center v. T.L.20-651Issue: Whether, despite the lack of any state involvement, participation, coercion, input or control of any kind, a private hospital is nevertheless a state actor because state law creates a safe harbor for those who conduct a private internal review to determine private medical care in a private facility.

Employer Solutions Staffing Group, LLC v. Scalia20-660Issues: (1) Whether the Supreme Courts willfulness standard, which requires a showing that the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute, may be satisfied merely by a showing that a non-compliant employer was on notice of its general requirements under the Fair Labor Standards Act but had no actual knowledge of or reason to believe that it was not complying with any requirement of the FLSA; (2) whether the Employer Solutions Staffing Group was liable for overtime wages when there was no evidence that they knew or should have known that overtime wages were not properly being paid by a low-level employee; and (3) whether the Employer Solutions Staffing Group may seek contribution under the FLSA from other joint-employers for joint and several liability for an overtime wage award.

South Bay United Pentecostal Church v. Newsom20-746Issues: (1) Whether California Governor Gavin Newsoms lockdown orders and reopening restrictions under the Blueprint framework, placing strict limitations, including closures, on all places of worship in California, violates South Bays First Amendment right to free exercise of religion; and (2) whether strict scrutiny is the proper standard of review for challenges to state and county restrictions upon free-exercise-of-religion rights during a pandemic, or whetherJacobson v. Massachusettsimposes extra limitations to the Supreme Courts established line of free-exercise jurisprudence during a pandemic.

Posted in Torres v. Texas Department of Public Safety, Gannett Co. v. Quatrone, Amazon.com Inc. v. Rittmann, Hemphill v. New York, Calvary Chapel Dayton Valley v. Sisolak, LSP Transmission Holdings, LLC v. Sieben, Cook Childrens Medical Center v. T.L., Employer Solutions Staffing Group, LLC v. Scalia, South Bay United Pentecostal Church v. Newsom, Featured, Cases in the Pipeline

Recommended Citation: Andrew Hamm, Petitions of the week: Re-opening church doors and opening evidentiary doors, SCOTUSblog (Dec. 11, 2020, 4:45 PM), https://www.scotusblog.com/2020/12/petitions-of-the-week-re-opening-church-doors-and-opening-evidentiary-doors/

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Petitions of the week: Re-opening church doors and opening evidentiary doors - SCOTUSblog