Archive for the ‘First Amendment’ Category

Free-Speech Case Over Patron’s Arrest At The Kansas City Public Library Finally Comes To An End – KCUR

A lawsuit stemming from the highly publicized expulsion of a Kansas City library patron from a public event nearly four years ago has drawn to an end after the judge ruled in favor of the lone remaining defendant.

On Thursday, U.S. District Judge Beth Phillips found for an off-duty police detective who arrested Jeremy Rothe-Kushel, a documentary filmmaker from Lawrence who sued the detective and 13 other defendants over the incident, which drew national headlines.

Rothe-Kushel claimed his First and Fourth Amendment rights were violated after he was physically restrained on May 9, 2016, following a lecture at the librarys Plaza branch by American diplomat and former Middle East envoy Dennis Ross.

The lecture, about President Harry Truman's recognition of the state of Israel, was organized by the Jewish Community Foundation and the Truman Library Institute. Following the April 2014 shootings that left three people dead at the Jewish Community Center and Village Shalom in Overland Park, there was heightened security at the event.

During a planned question-and-answer session after the lecture, Rothe-Kushel stepped up to the microphone and asked Ross a long, rambling question alluding to what he said was a history of state-sponsored terrorism by Israel and the United States.

Ross responded and Rothe-Kushel began arguing with him. At that point, the man in charge of security for the event, Blair Hawkins, began to physically remove Rothe-Kushel from the microphone. Hawkins was director of security for the Jewish Federation of Greater Kansas City, which had hired him following the 2014 shootings.

Video of the incident shows Hawkins grabbing Rothe-Kushels arm, telling him Youre done and attempting to remove him from the mic. Rothe-Kushel is seen yelling even as a second person approaches the mic to ask a question.

Rothe-Kushel was later arrested in the lobby after an off-duty officer hired for the event asked for his identification and he refused to give it. The librarys director of programming and marketing, Steven Woolfolk, was also arrested after he sought to intervene and prevent Rothe-Kushels removal.

Woolfolk was later charged with obstruction, interfering with an arrest and assaulting a police officer. After a day-long trial in September 2017, a Kansas City Municipal Court judge acquitted him of all three charges.

The actions taken by the officers sparked outrage among civil libertarians and were condemned by the librarys then-executive director, R. Crosby Kemper III, who said the officers had overreacted.

Rothe-Kushels lawsuit named 14 defendants, including officials of the Jewish Community Foundation and the Truman Library Institute; the off-duty policemen involved in the incident; Kansas City Chief of Police Rick Smith; and members of the Kansas City Board of Police Commissioners, including then-Kansas City Mayor Sly James.

Rothe-Kushel later voluntarily dismissed his claims against the members of the police board and the off-duty officers, except for the detective who arrested him, Brent Parsons.

The claims against officials of the Jewish Community Foundation and Truman Library Institute had been dismissed earlier in the case although its not clear if they were dismissed because the organizations reached settlements with Rothe-Kushel or because of the merits of their legal defenses.

I can say that matters as to other defendants were concluded, said Arthur Benson, one of Rothe-Kushels attorneys. Thats all I can say.

Officials of the Jewish Community Foundation and Truman Library declined to comment or could not be reached for comment.

In her 12-page ruling Thursday in favor of Parsons, Judge Phillips found that Parsons had probable cause to arrest Rothe-Kushel for trespassing and for refusing to provide his identification.

She also found that while Rothe-Kushel had a First Amendment right to ask Ross questions, that right was not limitless: (H)e could not ask so many questions that other audience members were deprived of the opportunity, and he had no right to argue with Ambassador Ross (and no right to expect Ambassador Ross to engage in such an argument).

Finally, Phillips found against Rothe-Kushel on his claims of conspiracy to violate his civil rights, false arrest and conspiracy under state law.

Rothe-Kushel, reached by email, declined to say whether he had reached settlements with any of the defendants.

Fred Slough, another attorney representing Rothe-Kushel, said it was a serious wrong for Rothe-Kushel to have been removed and arrested. He said Rothe-Kushel would have complied with a request to leave the library.

Instead he was grabbed and manhandled in the middle of an exchange with the Ambassador that was not a disturbance, except in the sense that some in the audience audibly disagreed with its content, Slough said via email. The law does not allow such a heckler's veto of free speech.

Editor's note: This story was updated with Rothe-Kushel's comment.

Dan Margolies is a senior reporter and editor at KCUR. You can reach him on Twitter @DanMargolies.

Originally posted here:
Free-Speech Case Over Patron's Arrest At The Kansas City Public Library Finally Comes To An End - KCUR

Elizabeth Warren Would Like to Be Appointed as the Arbiter of Truth – National Review

Senator Elizabeth Warren speaks to the media in Washington, D.C., January 23, 2020. (Joshua Roberts/Reuters)

Elizabeth Warren has proposed repealing the First Amendment. (Again.) Per CNBC:

Democratic presidential candidate Elizabeth Warren on Wednesday released a plan to fight disinformation to hold tech companies accountable for their actions in light of the 2016 election.

Thats one way of putting it, certainly. Another would be: Having bought into the conspiracy theory that the 2016 election was meaningfully affected by people arguing stupidly online, Elizabeth Warren has released a plan for the federal government to regulate the press, the publishing industry, and the Internet.

Why? To save democracy, naturally:

Disinformation and online foreign interference erode our democracy, and Donald Trump has invited both, Warren said in a Tweet Wednesday. Anyone who seeks to challenge and defeat Donald Trump in the 2020 election must be fully prepared to take this on and Ive got a plan to do it.

Warren proposed to combat disinformation by holding big tech companies like Facebook, Twitter and Google responsible for spreading misinformation designed to suppress voters from turning out.

I will push for new laws that impose tough civil and criminal penalties for knowingly disseminating this kind of information, which has the explicit purpose of undermining the basic right to vote, Warren said in a press release.

It is difficult to know where to start here. No such democracy exemption exists within the First Amendment, and no such exemption should exist within the First Amendment. The merits of my doing so aside, if I wish to say or write that particular people should not vote, or that immigrants such as myself should be disenfranchised or that the 19th Amendment was a mistake, that is my right. Were this not the case were it the case, that is, that the First Amendment could be regulated in such cases as it were being used to attack other parts of the Constitution then Elizabeth Warren herself would be liable for prosecution. (Or, at the very least, for being held accountable by the president, whatever that means.)

Ironically enough, Warrens proposal would represent a boon to precisely the sort of corruption and entrenchment of power that she insists she wishes to fight. In the vast majority of cases it would be wholly impossible for the government to determine what sort of speech served to undermine the basic right to vote or to to polarize and disenfranchise particular groups or to disempower voters, such that any concerted attempt to do so would necessarily be driven by partisan interest and little else besides. Warren complains that the same tactics employed by the Russian government are just as easily accessible to domestic groups seeking to promote or oppose candidates and political or social issues. Those tactics, lest we forget, were . . . arguing about politics. There is simply no way for the federal government to superintend domestic groups seeking to promote or oppose candidates and political or social issues without the federal government controlling political speech.

It was recently proposed that it should be unconstitutional to vote Republican. Warrens idea is merely that scheme applied to the First Amendment. In effect, Warren is seeking the power to decide what is true and what is not and what may be disseminated and what may not and to apply this power to the elections in which she herself takes part. That she is chasing this authority while accusing the incumbent president of seeking to use his office for personal political gain (which he did) is startling.

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Elizabeth Warren Would Like to Be Appointed as the Arbiter of Truth - National Review

First Amendment Challenge to Restrictions on Use of Falcons in Videos and Commercials – Reason

From Stavridanoudakis v. U.S. Dep't of Fish & Wildlife, decided Friday by Judge Lawrence J. O'Neill (E.D. Cal.):

The Migratory Bird Treaty Act ("MBTA") codifies the protections of migratory birds as outlined in various conventions between the United States and four foreign countries: Canada, Mexico, Japan, and Russia. The MBTA only applies to migratory birds native to the United States, which includes several types of Falconiformes (vultures, kites, eagles, hawks, caracaras, and falcons) and Strigiformes (owls). The MBTA authorizes the Secretary of the Interior ("Secretary") to adopt suitable regulations to determine, inter alia, when, and to what extent, it may be permissible to hunt, take, capture, possess, sale, and transfer protected birds, bird parts, nests, and eggs.

Pursuant to the authority of the MBTA, the Secretary promulgated regulations to regulate falconry standards and falconry permitting . 50 C.F.R. 21.29(f)(9)(i) prohibits photographing or filming falconry raptors for "movies commercials, or in other commercial ventures." 50 C.F.R. 21.29(f)(9)(ii) prohibits falconers from photographing or filming their birds for "advertisements; as a representation of any business, company, corporation, or other organization; or for promotion or endorsement of any products, merchandise, goods, services, meetings, or fairs"unless the promotion or endorsement is of "a nonprofit falconry organization or association" or "products or endeavors related to falconry."

50 C.F.R. 21.29(f)(8)(v) dictates that during conservation education programs, falconers "must provide information about the biology, ecological roles, and conservation needs of raptors although not all of these topics must be addressed in every presentation."

In Count III of the FAC, Plaintiffs claim that 50 C.F.R. 21.29(f)(9)(i) is a content-based restriction that violates the First Amendment. Section 21.29(f)(9)(i) states "You may not use raptors to make movies, commercials, or in other commercial ventures that are not related to falconry."

In Count IV, Plaintiffs contend that 50 C.F.R. 21.29(f)(9)(ii) is an unconstitutional restriction on commercial speech. ECF No. 16 at 15-16. 50 C.F.R. 21.29(f)(9)(ii) states that falconers may not use their raptors for "commercial entertainment; for advertisements; as representation of any business or for promotion of any products [or] services with the following exceptions: (A) to promote a nonprofit falconry organization [and] (B) to promote products related to falconry ."

In Count V, Plaintiffs challenge 50 C.F.R. 21.29(f)(8)(v) which requires falconers giving conservation education programs to provide "information about the biology, ecological roles, and conservation needs of raptors."

In Count VI, Plaintiffs challenge the prohibitions on charging fees that exceed the amount required to recoup costs under 50 C.F.R. 21.20(f)(8)(iv).

The Supreme Court has recognized that various forms of entertainment and visual expression are purely expressive activitiesincluding movies. Therefore, 50 C.F.R. 21.29(f)(9)(i)'s restrictions on movies and 21.29(f)(9)(ii)'s restriction on commercial entertainment go beyond restricting expressive conduct and restrict purely expressive activity.

The restriction compelling the content of falconers' conservation education program under 50 C.F.R. 21.29(f)(8)(v) is clearly a content-based restriction because it explicitly restricts the topic of the speech that can be discussed: "you must provide information about the biology, ecological roles, and conservation needs of raptors ." The regulation unequivocally discriminates based on the topic of the educational presentation.

"A statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech." Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 115 (1991). 50 C.F.R. 21.29(f)(8)(iv) limits the fee that falconers can charge when giving a conservation education program. Therefore, this regulation imposes a financial burden on falconers depending on the content of their presentation.

The Federal Defendants do not argue in the motion to dismiss that the regulations restrict excludable speech (i.e. obscenity), or that the regulations are valid time, place, and manner restrictions. See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). It is inconsequential that falconers could merely use nonnative raptors to engage in the prohibited activities. Because the restrictions are content based, they are not subject to reasonable time, place, and manner restrictions. Id. (the government may impose reasonable time, place, and manner restrictions, provided the restrictions are justified without reference to the content of the regulated speech). The Federal Defendants provide no such support that the restriction on use of native raptors is no less a restriction on falconers' speech.

In addition, the Federal Defendants make no argument in the motion to dismiss that the content-based restrictions pass strict scrutiny. Thus, the Federal Defendants' motion to dismiss Counts III, IV, V, and VI on the grounds that the regulations do not restrict protected speech is DENIED.

Next, the Federal Defendants contend that, assuming the speech restricted by the regulations is protected speech, the regulations do not violate the First Amendment because they are permissible regulations on commercial speech. {As discussed below, even assuming the speech regulations are aimed at only commercial speech, the Court finds that Defendants are not entitled to dismissal. In light of that finding and because the First Amendment test for commercial speech is less stringent, at this stage, the Court is not required to determine definitively the commercial or noncommercial nature of speech being restricted.}

In the present case, the limits on "commercials," under 21.29(f)(9)(i) and "advertisements," under subsection (ii), standing alone, are restrictions on commercial speech. However, restrictions on film (movies), photography, or on commercial entertainment are not restrictions on commercial speech. See ETW v. Jireh Pub., Inc., 332 F.3d 915, 925 (6th Cir. 2003) (holding "prints," or copies, of paintings were not commercial speech because they did not propose a commercial transaction); see also Anderson, 621 F.3d at 1060 (recognizing various forms of entertainment and visual expressionincluding moviesare purely expressive activities). Thus, 21.29(f)(9)(i) & (ii) place restrictions on commercial speech advertisements, commercials, and promoting a business or productand on non-commercial, fully-protected speech.

The Court evaluates restrictions on commercial speech using the four-part test in Central Hudson: "(1) if the communication is neither misleading nor related to unlawful activity, then it merits First Amendment scrutiny as a threshold matter; in order for the restriction to withstand such scrutiny, (2) [t]he State must assert a substantial interest to be achieved by restrictions on commercial speech; (3) the restriction must directly advance the state interest involved; and (4) it must not be more extensive than is necessary to serve that interest."

Plaintiffs argue that Defendants cannot make the showing on the fourth prong that the restrictions fit the government's interest at the motion to dismiss stage. Where the challenged regulation is a content-based restriction subject to strict scrutiny, the issue of whether the challenged restrictions adequately fit the government interest was a question for summary judgment or trial. Frudden v. Pilling, 742 F.3d 1199, 1207-08 (9th Cir. 2014). The summary judgment process requires defendants to show a compelling government interest and permits plaintiffs an opportunity to present countervailing evidence.

The Court acknowledges Defendants have a substantial interest in protecting native raptors. In arguing that the regulations meet the fourth prong as a matter of law, the Federal Defendants claim that "the regulations are directed specifically at commercial endeavors, with a limited carve-out for falconry related undertakings." ECF No. 24-1 at 19. However, in light of Frudden, the present record is not developed sufficiently. Accordingly, the Federal Defendants' motion to dismiss the challenges to 50 C.F.R. 21.29(f)(9)(i) and (ii) (Counts III & IV) on the theory that they are permissible commercial speech restrictions is DENIED.

In Count VI (Second Count), Plaintiffs claim that the California regulation, 14 C.C.R. 670(h)(13)(A), violates the First and Fourteenth Amendments in the same way that the federal regulations do. This regulation states: "Education and Exhibiting. A licensee may use raptors in his or her possession for training purposes, education, field meets, and media (filming, photography, advertisements, etc.), as noted in 50 CFR 21, if the licensee possesses the appropriate valid federal permits, as long as the raptor is primarily used for falconry and the activity is related to the practice of falconry or biology, ecology or conservation of raptors and other migratory birds. Any fees charged, compensation, or pay received during the use of falconry raptors for these purposes may not exceed the amount required to recover costs."

Like the federal regulations in Counts III, IV, V, and VI, this regulation is also a restriction of expressive activity based on content. It demands that when using the raptors in presentations or media, the content must be related to falconry. Section 670(h)(13)(A) also imposes a restriction on compensation that corresponds to the federal regulations. The State Defendants argue that 670(h)(13)(A) does not ban speech. For the same reasons stated above that the federal regulations are content-based restrictions on expressive activity, the Court rejects this argument. Because the regulations are content based, they are presumptively unreasonable and subject to strict scrutiny review.

Next, the State Defendants contend that should falconers desire to use raptors for exhibiting or commercial uses not authorized in 670(h)(13)(A), they may obtain the appropriate permit to engage in such activity. It is somewhat unclear what State Defendants are pecking at. The Court has reviewed the falconry regulations raised by the parties. It is possible there is a separate regulatory regime that supports State Defendants' argument that falconers can obtain a separate permit to engage in the prohibited activities. State Defendants have not identified any such alternative regulations or laws.

The language of the regulations does not support the State Defendant's position.14 C.C.R. 670(h)(13)(A) provides "A licensee may use raptors in his or her possession for training purposes, education field meets, and media (filming, photography, advertisements, etc.), as noted in 50 CFR 21, if the licensee possesses the appropriate valid federal permits, as long as the raptor is primarily used for falconry and the activity is related to the practice of falconry or biology, ecology or conservation of raptors and other migratory birds." By this provision's plain language, it does not appear that a falconer could seek a permit to give a talk with the raptor that is unrelated to the practice of falconry. For instance, even with an exhibiting permit under 14 C.C.R. 671.1(b)(6), a falconer could not give a presentation using her raptor about her political or religious views, or throw a Harry Potter party for a relative, because these topics are not related to the practice of falconry or the biology, ecology, or conservation of raptors. Furthermore, it is notable that the provision requires the licensee to possess the "appropriate valid federal permits." Thus, the Court rejects the State Defendants' argument that Count VI (Second Count) fails to state a claim for relief on the theory Plaintiffs could simply get a separate federal permit.

[T]he strength of the government's interest for the challenged regulations and the fit of those interests to the speech restrictions at issue are material to the Court's preliminary injunction analysis for all three categories of the First Amendment challenges.

The Court tentatively finds that the government has a strong interest in protecting the native raptor species, but because the briefing has failed to sufficiently discuss any aspect of fit, and because the Court is responsible for evaluating how a preliminary injunction would impact the public interest, the Court must hear from the Federal and State Defendants before it takes any action.

For example, it is unclear from the present record whether prohibiting falconers from earning money for educational presentations is a narrowly-tailored solution to combat a marketplace for the protected birds. Federal and State Defendants must discuss why the restrictions on falconers' ability to give presentations and to film and photograph their birds meet strict scrutiny.

As with analyzing the restrictions on falconers' ability to give presentations and film their birds, the Court will need supplemental briefing to thoroughly analyze whether the compensation restrictions are narrowly tailored to achieve the government's interest. Federal and State Defendants must discuss why the compensation restrictions meets strict scrutiny.

As to the third category relating to commercial speech, the Federal Defendants contend that the regulations affecting commercial transactions of falconers are necessary to prevent a market for the protected birds from developing. Federal Defendants argue that lifting the regulations would undermine the goal of falconry raptor preservation and cause detrimental effects on the protected species.

Under Central Hudson, the restriction must not be more extensive than necessary to serve the government interest. The test is sometimes phrased as requiring a "reasonable fit" between the government's legitimate interests and the means it uses to serve those interests, or that the government narrowly tailors the means to meet its objective.

At present, the Federal and State Defendants' briefing does not explain how the regulations are not more extensive than necessary to serve an important state interest. The State Defendants similarly do not address how the restrictions on commercial speech are not more extensive than necessary to promote the health and welfare of raptors. Therefore, on the present record, the Court cannot determine if the restrictions on commercial speech are not more extensive than necessary to serve these interests.

The Court will order the Federal and State Defendants to submit supplemental briefing with respect to these narrow issues. The Defendants should discuss the nature of the government interest involved and how the three categories of speech restrictions (falconers' presentations and media, compensation, and commercial speech) are drawn to meet such interest. Lastly, Defendants should provide an analysis for the third and fourth prongs of the Winter test: the balance of equities and the public interest. Plaintiffs will then have an opportunity to respond.

The State and Federal Defendants are ordered to file supplemental briefs addressing the state interest(s) in the regulations challenged under the First Amendment and how those speech restrictions are tailored to achieve those interests, and relatedly, the balance of equities and the public interest prongs under Winter. The Defendants shall have 30 days from the date of this order to file the briefs. Toucan, of course, play at this game, so Plaintiffs will then have 30 days from the date they are served with both State Defendants' and Federal Defendants' briefs to file a responsive brief.

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First Amendment Challenge to Restrictions on Use of Falcons in Videos and Commercials - Reason

The First Amendment and Supreme Court | Opinion | dailyitem.com – Sunbury Daily Item

Kendra Espinoza, a single mother of two young girls, never dreamed that sending her daughters to a Christian school in Kalispell, Montana, would lead her to the national stage. But on Wednesday, her lawsuit, Espinoza v. Montana Department of Revenue, was argued before the U.S. Supreme Court, and its far-reaching implications could impact Pennsylvanians education options.

Espinoza homeschooled her daughters until her husband unexpectedly left, forcing her to enroll them in the local public school. The school wasnt a good fit for her daughters they werent thriving. Stillwater Christian School seemed like the perfect solution, but tuition was more than she could afford. Still, she worked extra jobs, held a big yard sale, and raffled quilts to come up with the money. Her older daughter even mowed lawns to contribute.

It was barely enough.

Then, Espinoza learned of a recently enacted program in Montana, similar to Pennsylvanias tax credit scholarships, that could help her afford tuition for future school years. Her glimmer of hope was short-lived, though. Montanas program bars religious schools, and the state refused to grant her daughters scholarships.

Espinoza felt that amounted to discrimination. She and two other moms in similar situations sued the department with the help of nonprofit law firm, the Institute for Justice. But the Montana Supreme Court doubled down, ruling the entire scholarship program unconstitutional in 2018.

The families appealed and are now before the U.S. Supreme Court, arguing that ending the scholarship program because it included religious schools violates the First Amendment.

At issue is the Montana constitutions Blaine Amendment, which prohibits the government from giving public funds to religious schools. There are similar provisions in 36 other state constitutions, including right here in Pennsylvania. These amendments trace their roots to the late 1800s, when anti-Catholic sentiment was rampant and protestant legislators sought to starve them of public funds. Congressman James Blaine and many other anti-Catholic legislators required prospective states to adopt Blaine Amendments in order to be admitted to the union and persuaded many existing states to adopt similar amendments.

Now, the Supreme Court will decide if these provisions violate the U.S. Constitution.

The issues presented in Espinoza are not new to the Court. In Zelman v. Simmons-Harris, the Supreme Court upheld an Ohio school voucher program, ruling that it was neutral with respect to religion since parents not the government are the ones directing government aid to the schools.

And in Trinity Lutheran Church of Columbia, Inc. v. Comer, the Court found that Missouris denial of a church application for new playground surfacing was a violation of the churchs First Amendment protections by denying a generally available benefit solely on account of the [applicants] religious identity.

If the Court follows the same logic, Espinoza and the other Montana moms stand a good chance of winning. Similar to the situation in Zelman, the Montana program was impartial to religion and was designed to help disadvantaged students. Moreover, the ruling in Trinity Lutheran created a precedent for greater scrutiny when the state excludes a church from public benefits. With these cases setting the stage, the Supreme Court has the opportunity in Espinoza to defend the rights of parents to access public programs without compromising their constitutional rights. As a result, anti-Catholic Blaine Amendments in Montana and dozens of other states, may be laid to rest.

Such an outcome will liberate students across the country including in Pennsylvania to pursue broader educational choices that satisfy their needs. While Pennsylvanias tax credit scholarships pass constitutional muster, removing our Blaine Amendment will open the door to new educational freedoms for students.

If we win at the Supreme Court, it makes a difference for my girls and for so many other families, says Kendra Espinoza. I believe school choice is important for all families, not just for myself and my children. Its my right as a parent to choose how my children are educatednot the governments right.

Colleen Hroncich is a senior policy analyst for the Commonwealth Foundation (CommonwealthFoundation.org), Pennsylvanias free market think tank.

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The First Amendment and Supreme Court | Opinion | dailyitem.com - Sunbury Daily Item

Throwback Thursday: The First Amendment’s Freedom of Assembly in Action in Nutley NJ – TAPinto.net

NUTLEY, NJ - On Jan. 23, 2019,Nutley Public School teachers ralliedpeacefully in front of John H. Walker Middle School in a sign of unity with their representatives who were negotiating their contract with the Board of Education. The contract was eventually settled, and based on information presented in subsequent BOE meetings, the teacher's hard work paid off in the form of improved student performance.

TAPinto Nutley captured this "First Amendment Moment" ofthe 'right of the people peaceably to assemble.' one year ago today.

TAPinto is a big fan of the First Amendment to the Constitution, especially the freedom of the press part, but let's take a moment to read the entire amendment.

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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

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Throwback Thursday: The First Amendment's Freedom of Assembly in Action in Nutley NJ - TAPinto.net