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A few weeks ago, the Texas Supreme Court made headlines by warning state officials that there was not, in fact, a pandemic exception to the United States Constitution. This past week, however, the U.S. Supreme Court seemed to create one. In an order that surprised even the liberals at Vox, the Supreme Court blessed a Nevada law that preferences casinos over churches. The decision has no basis in First Amendment law and establishes a worrisome precedent for government overreach in times of crisis.

Located in Dayton, Nevada, Calvary Chapel is a small, rural church that wishes to host worship services for about 90 congregants, which is 50% of its fire-code capacity. Calvary Chapels reopening plans are more than compliant with state and CDC requirements. A limited, 45-minute service (half the normal length), one-way entrance and exit footpaths, six-feet of separation between families, a prohibition on passing items, and sanitization between services are just some of the measures proposed by Calvary Chapel.

Yet Nevada forbade Calvary Chapel from opening its doors. In a breathtaking assertion of governmental power premised on COVID-19, Gov. Steve Sisolak (a Democrat) issued a directive that severely constrains church attendance. No church, synagogue, mosque, or other place of worship may admit more than 50 persons no matter the building capacity or safety measures employed.

The fact that these restrictions do not apply to casinos, gyms, bowling alleys, restaurants, or bars should have made Calvary Chapel Dayton Valley v. Sisolak an easy case. It is blackletter law that strict scrutiny applies to government restrictions on religious exercise that are not neutral and of general applicability. If the Free Exercise Clause means anything, it means government may not single out the religious for disfavored treatment. Yet, that is precisely what Nevada has done. While limiting church attendance to 50 people, Nevada allows the casino down the street to admit thousands of people, up to 50% of their maximum capacity.

Further, casinos are not the only venues that are treated more favorably than churches. Other commercial interests, such as bars, gyms, and restaurants, may also operate at 50% capacity. In fact, tournament bowling alleys in Las Vegas seat hundreds of spectators, and like casinos, can admit up to 50% of capacity. State guidelines provide that groups of up to 50 people may sit together in bowling alley grandstands. Meanwhile, the synagogue down the street is limited to 50 total worshippers.

On Friday, in a one-sentence order that contains not a word of explanation, a sharply divided 5-4 Supreme Court denied Calvary Chapels application for an injunction restraining the state of Nevada from enforcing its 50-person limit on religious services.

Justices Samuel Alito, Brett Kavanaugh, and Neil Gorsuch each authored a dissent arguing that Nevadas reopening plan discriminated against religious services in violation of the First Amendment.

As Alito explained, a public health emergency does not give public officials carte blanche to disregard the Constitution for as long as the medical problem persists. Rather, officials are required to craft policies that account for constitutional rights.

This principle is hardly new. In 1866, involving events at the height of the Civil War, the Supreme Court held that the Constitution may not be modified in times of crisis. Rather, our founding charter applies at all times and under all circumstances. Indeed, the court could not think of any other doctrine involving more pernicious consequencesthan that any of its provisions can be suspended during any of the great exigencies of government.

If only the current Supreme Court would return to this view. As Gorsuch explained, the world we inhabit today, with a pandemic upon us, poses unusual challenges. But there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.

All is not lost, however. Although Calvary Chapel will not receive its injunction, the courts still have a chance to consider the case on the merits and to ensure that the First Amendments protections apply at all times and in all circumstances.

Erin Hawley is a senior legal fellow at Independent Womens Law Center and a former clerk to Chief Justice John Roberts of the Supreme Court of the United States.

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There are no exceptions to the First Amendment, even in a pandemic - Washington Examiner

PEN America says federal agents are not above the rule of law in repressing and attacking protesters and reporters

(New York, NY) Reports have emerged that federal authorities have required detained protesters in Portland to commit to not attending further protests as a condition for release, and that federal officers have shot at and maced reporters and legal observers covering protests. PEN Americas director of U.S. free expression programs Nora Benavidez released the following statement in response:

Forcing First Amendment-abiding protesters to sign away their right to demonstrate to be released. Law enforcement using live ammunition against reporters and legal observers. These are gross violations of the First Amendment. Federal agents are not above the rule of law, and certainly not above the Constitution. The actions unfolding in Portland are aimed not only at silencing dissent, but also silencing the reporters and journalists working to reveal whats happening on the ground. This has to stop. Freedom predicated on silence isnt freedom at all.

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Federal Authorities' Conduct Against Protesters and Reporters in Portland Gross Violations of the First Amendment - PEN America

TOPLINE

The U.S. House of Representatives on Thursday blocked an amendment to its Defense Appropriations bill for fiscal 2021 that would have barred the U.S. military from recruiting on video game streaming sites like Amazon's Twitch, with the amendment's author Rep. Alexandria Ocasio-Cortez (D-N.Y.) saying on the floor, "War is not a game."

NEW YORK, NY - APRIL 14: Representative Alexandria Ocasio Cortez (D-NY) speaks at a press conference ... [+] at Corona Plaza in Queens on April 14, 2020 in New York City. Ocasio-Cortez was joined by Senate Minority Leader Chuck Schumer (D-NY) at the conference, where both called for the Federal Emergency Management Administration to fund funeral costs in low-income communities of color during the ongoing amid the coronavirus pandemic. (Photo by Scott Heins/Getty Images)

"This amendment is specifically to block recruitment practices and funding for recruitment practices on platforms such as Twitch.tv, which are live-streaming platforms which are largely populated by children well under the age of military recruitment rules," Ocasio-Cortez said.

While Republicans unanimously opposed the measure, Democrats were split, with Ocasio-Cortez taking to Twitter during the vote to say, "Imagine trying to explain to your colleagues who are members of Congress what Twitch is."

The U.S. Airforce, Army and Navy all sponsor esports teams with members streaming to Twitch, but recent controversies prompted concerns over the recruitment practice.

Twitch stepped in to stop the Army from using a faux giveaway to redirect viewers to a recruitment form, and lawyers from the Knight First Amendment Institute at Columbia University demanded that the Army and Navy reverse bans on their Twitch channels against a user who asked about U.S. war crimes in the channels' chats.

Rep. Pete Visclosky (D-Ind.), who chairs the Defense Appropriations Subcommittee, spoke out against the amendment during debate, saying, "The United States Military is a very special place...we oughta cast a very wide net to encourage young Americans to serve their country in the military."

Visclosky argued the military conducts educational programs for young people, but Ocasio-Cortez responded, "Children on platforms such as Twitch are bombarded with banner ads that link to recruitment sign up forms that can be submitted by children as young as 12 years old. These are not educational outreach programs but recruitment forms."

Referencing first-person shooter games popular with military members streaming on Twitch, like Call of Duty, Ocasio-Cortez said, "We cannot conflate war and military service with this kind of gamified format." She later tweeted, "Its totally fine if you dont know what Twitch is, but tech literacy is becoming an [sic] growing need in Congress so we can legislate to protect peoples privacy."

Using games as a means to recruit young people into the U.S. military isnt new. In 2002, the Army launched the America's Army series of video games, the latest being the free-to-play America's Army: Proving Grounds. "Funded by the Army Marketing and Research Group, America's Army, the official game of the U.S. Army, delivers an authentic and entertaining Army experience by reflecting the values, training, technology, skills and career advancement of a United States Army Soldier," the official video game page reads. Proving Grounds is rated Teen, meaning the content in the game is suitable for people ages 13 and older.

Following the accusations that the U.S. Army violated the first amendment right to free speech by banning a Twitch user from its channeljust as President Trump is restricted from blocking Twitter usersthe military branch told GameSpot that it would pause activities on the platform and "review internal policies and procedures, as well as all platform-specific policies, to ensure those participating in the space are clear before streaming resumes. The "About" page for the Navy's esports channel reads, "Other people will tell you not to stay up all night staring at a screen. Well pay you to do it."

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House Blocks AOC's Amendment To Bar U.S. Military From Recruiting On Video Game Streaming Sites Like Twitch - Forbes

Amid the turmoil over taking down Confederate monuments and others ranging from Christopher Columbus to Theodore Roosevelt, heres an idea that that almost everyone can get behind: How about erecting monuments that celebrate the Bill of Rights?

Yes, the Bill of Rights: 10 amendments to the Constitution, ratified in 1791, that spelled out the individual freedoms Americans have enjoyed ever since including the freedom to protest against things like monuments (thanks to the First Amendment.)

A campaign to place Bill of Rights monuments in state capitols in all 50 states is already underway, albeit moving slowly. Arizonas Bill of Rights monument was built in Phoenix in 2012, and plans for an OkIahoma monument in Oklahoma City are progressing. A smaller scale monument can be found in Montezuma, Iowa.

Its the brainchild of Chris Bliss, a comic by trade who has made the Bill of Rights his side project. Comics, after all, benefit greatly from the First Amendment. His campaign began nearly two decades ago, when there was controversy over monuments that celebrated the Ten Commandments, also often placed in state capitols.

Bliss envisioned erecting Bill of Rights monuments as a way to "comparison shop" with the Ten Commandments, he says whimsically. He also wants the monuments built near state capitols because "every kid goes to state capitols" on school field trips. He estimates that 40,000 students a year have visited the Arizona monument.

As he delved into the project, Bliss found that the Bill of Rights was something of a forgotten document, rarely taught in schools. People knew about a patients bill of rights or a bill of rights for airline passengers. But it was hard for people to grasp the abstract principles of the constitutional Bill of Rights, Bliss says, and therefore hard to turn those principles into marble or limestone.

Donations and support for Bliss Bill of Rights project have been sporadic over the years, with comedians like Lewis Black and the late Dick Gregory helping out. The Bill of Rights has "no preexisting constituency," Bliss says, unlike other organized groups that can lobby successfully for building monuments.

But in the aftermath of the recent protests nationwide that involve monuments and civil liberties, he hopes to jump-start his project and hasten the building of Bill of Rights monuments nationwide. "This is a very positive moment," Bliss says.

Amendments a safeguard for citizens

The relevance of the Bill of Rights to todays divisions is clear and deserves recognition. The Bill of Rights fosters freedom of expression, religion, due process, fair trials, protection against unreasonable government intrusion or excessive fines, among other important rights.

The 10 amendments are not without controversy. Interpreting the religion clauses of the First Amendment, the right to bear arms in the Second Amendment, and the "cruel and unusual punishment" clause of the Eighth Amendment has been a contentious task for centuries.

And there are parts of the Bill of Rights that are quirky, to say the least. The Third Amendment, for example, prohibits soldiers from being quartered in homes without the consent of owners. It was a big issue at the time of the founding, but not now.

Opportunity to celebrate liberty

Bliss says there is no better remedy for monument controversies than to commemorate the Bill of Rights, which he calls "the most powerful and successful assertion of individual rights and liberties ever written."

He adds, "The ideas were radical at the time, but now, people say, Of course. There is not an exclusionary phrase in the entire document. It is time for us to rediscover our own Bill of Rights and to elevate it to the position of public prominence it richly deserves."

Tony Mauro, a member of USA TODAY's Board of Contributors, covered the Supreme Court for USA TODAY from 1982 to 2000.

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Opinion: Heres a monument all Americans can rally around: Lets celebrate the Bill of Rights - Pocono Record

The U.S. Department of Homeland Security (DHS) said Friday that it has ordered agents to stop compiling and circulating intelligence reports on journalists.

The move came a day after The Washington Post reported that a DHS office had created three reports on two journalists covering demonstrations in Portland, Oregon, that were distributed to federal law enforcement agencies.

The reports, compiled by the Office of Intelligence and Analysis, noted that the journalists had published leaked, unclassified documents about the deployment of federal agents to protests in Portland. The office is tasked with integrating DHS intelligence and distributing information to state and local authorities, as well as private partners.

In a statement, the Intelligence Office said that Acting DHS Secretary Chad Wolf had suspended the collection of information on journalists and ordered an investigation.

In no way does the acting secretary condone this practice, said DHS spokesperson Alexei Woltornist. The acting secretary is committed to ensuring that all DHS personnel uphold the principles of professionalism, impartiality and respect for civil rights and civil liberties, particularly as it relates to the exercise of First Amendment rights.

Details of the intelligence reports came amid unrest in Portlandand New York City, where plainclothes law enforcement officers have been spotted pulling protesters into unmarked vans. Portland police have livestreamed protests, which the American Civil Liberties Union of Oregon alleges violates state law blocking police from collecting information on law-abiding citizens.

The Post reported that the intelligence reports contained images and descriptions of tweets by Mike Baker, a journalist at The New York Times and Benjamin Wittes, editor-in-chief of Lawfare, a blog that focuses on national security and policy. The reports included the number of likes and retweets the social media posts received.

Baker had co-reported on two internal DHS memos related to protests and unrest in Portland: a July 18 article detailing a memo that warned federal agents in the city do not specifically have training in riot control or mass demonstrations. and a Tuesday article on a memo in which the department acknowledged it lacked insight into the motives for the most recent attacks in Portland. The Times published both memos in full.

Wittes, also a senior fellow at the Brookings Institution, tweeted images of internal Intelligence Office memos about leaks to Lawfare and Washington Post reporter Shane Harris, who later broke the news of the DHS reports. Wittes had reported that the DHS in mid-July authorized its personnel to monitor social media posts and collect information on people suspected of damaging public monuments.

In a Twitter thread about the intelligence reports, Wittes said that he was considering his legal options.

What is troubling about this story is that [the Office of Intelligence and Analysis] shared my tweets as intelligence reporting, wrote Wittes. I am not sure how my reporting of unclassified material constitutes any kind of homeland security threat that justifies the dissemination of intelligence reporting on a U.S. person, particularly not one exercising core First Amendment rights.

Analysts warned that the move appeared to threaten the First Amendment, which protects freedom of speech in the U.S.

Even if individual reporters are not quivering in their boots, potentially, I think it does set a very troubling and potentially unconstitutional tone, said Nora Benavides, director of U.S. Free Expression Programs at Pen America, a nonprofit advocating for free expression and press freedom. Other reporters may think twice before engaging in these types of investigative and journalistic practices."

Benavides described the intelligence reports as a very serious threat to the First Amendment.

We should not be in a position, and journalists should not be in the position to question whether they should do their job at the risk of being added, potentially, to an intelligence report and being investigated as if they are committing some criminal act, Benavides told VOA. Journalism and a free press, those are not inherently criminal. Those are the types of tactics we see in undemocratic governments.

The Reporters Committee for Freedom of the Press condemned the intelligence gathering and called on the DHS to make public the findings of its investigation.

Federal law prohibits the creation of dossiers on journalists precisely because doing so can morph into investigations of journalists for news coverage that embarrasses the government, but that the public has a right to know, Gabe Rottman, director of the technology and press freedom project at the Reporters Committee, said in a statement.

The DHS reports on journalists are not an isolated incident, said Benavides. Multiple U.S. federal agencies collaborated last year to create a secret database of journalists, activists and attorneys covering a large migrant caravan.

NBC7 in San Diego, California, reported that the database listed 10 journalists and 48 others whom officials recommended be targeted for screening at the U.S.-Mexico border. Each entry contained a photo, data of birth, country of commencement, alleged tie to the caravan, and any alerts placed on a subjects passport.

Benavides said the reports on journalists appear to harken back to the types of chilling practices in which a federal agency is using its ability to investigate individuals, especially reporters, to try to chill them or prevent them from investigating.

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US Homeland Security Created Files on Journalists - Voice of America