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GENESEO Livingston County Sheriff Thomas J. Dougherty confirmed Tuesday his deputies wont disturb gatherings of more than 10 people if theyre gathered for the purpose of practicing their religion. Such a gathering would be in violation of an executive order from Gov. Andrew Cuomo and punishable by an up to $1,000 fine.

I did put out a written directive to our patrol division members stating that if we are called to investigate a PAUSE violation involving people gathering for the purpose of a religious service, to do a drive by only, document in a report and forward to the chief deputy of our police services for further review, said Dougherty in an email. We will not be disrupting these services.

The contents of the directive are in line with the actions the Sheriffs Office has taken in response to previous complaints alleging violations of Cuomos New York on PAUSE order in Livingston County, Dougherty said.

We have not made one arrest on a PAUSE-related complaint but instead investigated and, if founded, educated only, he explained.

Dougherty said his decision to issue the directive was very difficult, especially given the intent of Cuomos order to minimize loss of life during a public health crisis. But with businesses starting to resume operations under the first phase of the governors reopening plan, and more slated to begin opening in Phase II, it ultimately came down to a Constitutional issue, he said.

The First Amendment is very clear and therefore we will not interfere with these religious gatherings, Dougherty said. Instead, we will do the drive by, document and review each case without disruption.

Dougherty declined to provide a copy of the written directive he sent to deputies.

New Yorks public gathering restrictions, which have been in place in some form since mid-March, started to slacken earlier this month in certain areas of the state that met criteria laid out in Cuomos reopening plan, which he dubbed New York Forward.

The plan established four different phases during which certain types of business are allowed to start reopening in the regions of the state that achieve public health metrics, such as a sufficiently low coronavirus infection rate and the presence of robust contact-tracing capacity.

The Finger Lakes Region, which includes Livingston County, was among the regions allowed to begin Phase I reopening May 15. The phase allowed businesses in the construction, agriculture and manufacturing industries, among others, to resume operations, provided they observe social distancing and other public health measures meant to slow the spread of the new coronavirus.

To read the New York Forward reopening guidelines, click here.

But nowhere in Cuomos initial reopening plan was there mention of when places of worship would be allowed to resume normal religious observances. In statements May 18, the states budget director, Robert Mujica, said churches would be allowed to begin reopening in the fourth and final phase of the states reopening plan.

That drew criticism from faith leaders, 300 of whom signed an open letter May 19 calling on Cuomo to prioritize the safe re-opening of churches for in-person worship services.

In a statement announcing the letter, Jason McGuire, executive director for New Yorkers for Constitutional Freedoms, a conservative values advocacy and lobbying group, argued churches should be allowed to begin reopening earlier, during Phase II.

If it is safe to re-open retail establishments in a given region, it is safe to re-open churches in that region as well, said McGuire, a Lima resident.

Local faith leaders who signed the open letter include Rev. Paul Palmer of the Oakland Wesleyan Church in Nunda, Pastor Donald Ray of the Pleasant Valley Baptist Church in Geneseo, and Pastor Matthew White of Village Baptist Church in Mount Morris.

To read the letter, click here.

In statements May 20, Cuomo addressed the issue, saying religious gatherings of up to 10 people were OK, as long as participants observed social distancing guidelines and wore face masks. The governor followed those statements with a May 21 executive order, which permitted gatherings of ten or fewer individuals for any religious service or ceremony.

To read the executive order, click here.

Cuomo also encouraged places of worship to consider drive-in and parking lot services for religious ceremonies.

As a former altar boy, I get it. I think even at this time of stress and when people are so anxious and so confused, I think those religious ceremonies can be very comforting, Cuomo said. But we need to find out how to do it, and do it safely, and do it smartly. The last thing we want to do is have a religious ceremony that winds up having more people infected.

In a statement posted to its website, NYCF said Cuomos 10 or fewer people concession on religious services doesnt go far enough, calling it an attempt to appease faith communities by making a minor gesture in our direction that falls far short of what is needed.

Added the group: A continued ban on worship services of more than 10 people effectively prevents all but the smallest churches from holding in-person services. There is no public health reason to bar churches in areas that have not been significantly affected by the pandemic from holding in-person services, provided that health and safety precautions are taken.

See more here:
'The First Amendment is very clear': Sheriff's Office won't break up religious services for 'NY on PAUSE' violations - The Livingston County News

The same day Donald Trump took to Twitter to threaten to regulate or shut down social media sites, the U.S. appeals court in Washington, D.C. dismissed a lawsuit accusing top tech companies of silencing conservative voices. Filed in 2018 by nonprofit Freedom Watch and right-wing gadfly Laura Loomer, the suit accused Apple, Facebook, Twitter and Google of stifling First Amendment rights.

The suit alleged that four of techs biggest names have engaged in a conspiracy to intentionally and willfully suppress politically conservative content. It specifically cited Loomers ban from Twitter and Facebook, following a tweet about Congresswoman Ilhan Omar. Also noted is her inability to grow an audience base and revenue on Googles YouTube, suggesting that after Trumps election growth on these platforms has come to a complete halt, and its audience base and revenue generated has either plateaued or diminished. Apples alleged role is less clear.

In the ruling, District Judge Trevor McFadden notes that Freedom Watch and Loomer failed to back up a claim that the companies were state actors, involved with the regulation of free speech.

The Plaintiffs do not show how the Platforms alleged conduct may fairly be treated as actions taken by the government itself, the judge writes. Facebook and Twitter, for example, are private businesses that do not become state actors based solely on the provision of their social media networks to the public.

In other words, the companies cannot violate the first amendment, because banning users doesnt constitute government abridgment of free speech. Per the decision, Freedom Watch fails to point to additional facts indicating that these Platforms are engaged in state action and thus fails to state a viable First Amendment claim.

See original here:
Appeals court rules in favor of Google, Apple, Facebook and Twitter in anti-conservative bias suit - TechCrunch

The Burke County community may be wondering if the recent ruling from the North Carolina federal court allowing churches to resume indoor services will change the way church services are currently held.

Livestreaming worship services, Bible studies and prayer meetings through Facebook and YouTube have been well-received in the community and beyond, according to many Burke County church pastors.

Viewing is significantly higher than our regular attendance, said the Rev. George Logan, pastor of New Day Christian Church. Many of our members are sharing messages with their family and friends. Weve gotten positive messages and comments from people from around our community, as well as the country and abroad.

Many churches provide a CD of the service to watch for church members who are not on Facebook or YouTube or who may not be technologically savvy. Members also check in on them by phone.

First Baptist Church of Morganton also reaches out to members by mailing a weekly newsletter and offers its Sunday morning service livestream on CoMPAS Cable Channel 2.

Judging from the numbers of people viewing the Sunday morning services, it appears that we are reaching hundreds of viewers each week, said the Rev. Dr. Tom Bland Jr., senior pastor at FBC of Morganton. I suspect that other churches that have been conducting online services have had similar experiences.

Chambers Chapel Missionary Baptist Church and First Baptist Church of Glen Alpine offer drive-up services Sundays. Gaston Chapel AME hosts praise in the parking lot services, and First Baptist Church of Icard holds services on the church grounds with attendees spaced 6 feet apart.

This information is current as of May 20, 2020 and includes information from more than 70 communities served by Lee newspapers. Please check directly with the place of worship for any change in status or services prior to attending or tuning in.

On Saturday, May 16, Judge James C. Dever III, of the Eastern District of North Carolina federal court, issued a temporary restraining order blocking the government from enforcing Gov. Roy Coopers executive order banning indoor religious services, ruling that it was a violation of the First Amendment, according to a previous News Herald article.

The lawsuit was filed by the Rev. Ronnie Baity, pastor of Berean Baptist Church in Winston-Salem; Return America Inc.; and Peoples Baptist Church Inc. A hearing is scheduled for May 29.

A few pastors in the community offered to shed some light on how they will serve their congregations amid the new ruling and COVID-19.

Logan said they will eventually begin to hold indoor services, but not until they have a comprehensive plan in place, which they are working on now.

It is of utmost importance to accurately discern what Gods spirit is saying to us, Logan said. If we do so, we will effectively minister to and protect our members, while still respecting authority.

Bland said they followed the governors executive order precisely and voluntarily for many reasons, but mainly for the concern for the health and safety of church members and visitors.

Our church presently is praying about and exploring (the) next steps as we anticipate that our state soon will transition into Phase 2 of its reopening, Bland said. We have made no decisions yet, at least through the end of May and possibly longer. (Before) any changes, we will prepare our facilities as fully as possible through strict adherence to (the) Centers for Disease Control and Prevention guidelines.

Thrive Church is allowing indoor services beginning May 24, where members must register on Facebook to attend the 10:45 a.m. service. Seating is limited to 50 people. Masks and social distancing are mandatory. Families are allowed to sit together.

Bland explained what we need to remember to continue to protect people from the virus.

We do not want to risk jeopardizing the health of anyone who might attend, he said. We want to strive to obey the biblical commandment to love our neighbors as ourselves, including through how we conduct ourselves as a church family as this pandemic continues.

Barbara Jolly-Deakle is a News Herald correspondent and a member of the Morganton Writers Group. She can be reached at BabbyWrites@CompasCable.net.

Here is the original post:
Churches respond to COVID-19, First Amendment ruling - Morganton News Herald

Amid the grim coronavirus news of death and unemployment, at least there is the comic relief of the left embracing the Tenth Amendment.

Suddenly trendy is the provision of the Bill of Rights that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

The rush to the Tenth came in response to President Trump'sstatementon May 22. "I call upon governors to allow our churches and places of worship to open right now," Trump said."The governors need to do the right thing and allow these very important, essential places of faith to open right now, for this weekend.If they don't do it, I will override the governors."

The editor of Mother Jones, a left leaning magazine, Clara Jeffrey, wasn't having it. "To be clear, Trump can't do [expletive] to force churches/temples/mosques to open. Little thing called the 10th Amendment," shetweeted.

The White House correspondent of the PBS Newshour, Yamiche Alcindor, made the same point. "Pres Trump says he will 'override the governors' if they don't follow new CDC guidance and open places of worship this weekend. Context: The 10th Amendment of the Constitution says powers not delegated to federal government are reserved to the states," Alcindortweeted.

A Democratic congressman from California, Jared Huffman, and a Democratic congressman from Maryland, Jamie Raskin, issued ajoint statementaccusing Trump of "breathtaking arrogance," and of threatening "to trample the sovereign powers of the states under American federalismand the rights of the people under the First Amendment and the Tenth Amendment."

Rachel Laser of Americans United for Separation of Church and State insisted that Trump lacks the power to override the governors. "The Tenth Amendment to the Constitution forbids the federal government from strongarming the states," Laser said, asquoted by Politico's Josh Gerstein.

What's amusing about this? Well, it's the humor of contrasting it with the attitude toward federal supremacy and states' rights that had obtained some years back, when the Democrats controlled the White House, and when "states rights" was the cry of segregationists, not social-distancers.

A front-page newsarticle in The New York Times back in 2010, when President Obama, a Democrat, was in the White House, cast doubt on states' rights efforts.

"Article 6 of the Constitution says federal authority outranks state authority, and on that bedrock of federalist principle rests centuries of back and forth that states have mostly lost, notably the desegregation of schools in the 1950s and '60s," the Times reported then. The Times quoted a law professor,Ruthann Robson, who claimed, "Article 6 says that that federal law is supreme and that if there's a conflict, federal law prevails."

A different New York Timesarticlefrom 2010 described the Tenth Amendment as "The Tea Party's favorite part of the Constitution," a reference to the grassroots "Taxed Enough Already" movement that was then organizing protests against Obama's policies.

Anda third Times article from 2010, reporting on Elena Kagan's confirmation hearing, observed, "Tea Party supporters believe that much of what the federal government regulates should be left to the states, where voters hold a shorter leash. For this reason, they embrace a strict interpretation of the 10th Amendment, which says that the powers not delegated to the federal government by the Constitution 'are reserved to the states respectively, or to the people.'"

Back in 1996, when a different Democrat, Bill Clinton, controlled the White House, a Timeseditorialcomplained, "A headstrong five-justice majority is driving the Supreme Court toward a revolutionary, indeed reactionary, interpretation of federalism, tilting the balance dangerously toward states' rights at the expense of Federal power."

It's hard to avoid the conclusion that support for states' rights or federal power is dependent on whether your guy is the one in the White House giving the orders or the one in the governor's mansion being ordered around. It's less principled or consistent that it is partisan and situational.

The right can vacillate on these matters, too. That's particularly true in religious freedom cases. A strong historical legal case can be made that the First Amendment prohibition on establishing a religion was intended as a restriction on the federal government, not the states. So some conservatives have resisted using federal power to strike down, say, state school prayers or depictions of the Ten Commandments in state courthouses. But many of these same folks are glad Trump is encouraging governors to allow in-person worship, an expression of the free-exercise protection in the same First Amendment.

If the left presses the "state sovereignty" argument against Trump too far, it may find that clashes will be refereed in federal courts, and that Trump is commander-in-chief of a military with firepower that dwarfs any state police or National Guard unit. But Trump, too, may wish to recall a lesson of the Tea Party, which is that if voters are angry enough at Washington that they've discovered the often-obscure Tenth Amendment, there may be some price to be paid by incumbents in the upcoming election.

For skeptics of Washington-imposed central authority or big government, the left's embrace of the Tenth Amendment may be a positive effect of the pandemic. What are the chances that it would last into a Biden administration?

Read the original:
Liberals Have Rediscovered the 10th Amendment's Value During the Coronavirus Pandemic - Reason

Are cable news channels protected by the First Amendment?

Thats the question teed up in a little-noticed lawsuit against Fox News for its COVID-19 coverage, which the plaintiff claims discounted the threat of the pandemic and led viewers to fail to protect themselves. The plaintiff, a small Washington state nonprofit called the Washington League for Increased Transparency and Ethics, or WASHLITE, is suing Fox for what it claims are violations of the states consumer protection laws.

Fox and WASHLITE have already gone back and forth on the consumer protection claim, but the nonprofit filed an extraordinary brief last week in response to Foxs motion to dismiss, arguing that cable news channels, indeed all cable content producers, are wholly unprotected by the First Amendment when that content is distributed over a third-party cable operators system. The plaintiff is misstating the law and doing so in such a way that would impair speech and press protections for everyone.

In fact, the argument if taken to its logical conclusion would strip First Amendment protections from content distributed over the public internet, including this blog post. To understand why, one needs a bit of background.

Cable television in the United States dates back to the late 1940s and early 1950s, but for the first quarter century of its existence was limited to sending terrestrial, over-the-air television broadcasts over coaxial cables to areas that, because of remoteness or mountainous terrain, suffered poor reception. Original cable programming started in the early 1970s with pioneers like Home Box Office, TBS, and the cult Z Channel in Los Angeles.

Starting at about the same time, the Federal Communications Commission began promulgating rules for cable programming, the most relevant here being requirements that cable programmers dedicate certain channels for public, educational, or government (PEG) use, or for commercial lease by unaffiliated programmers. An ongoing debate over the FCCs authority to impose these rules and efforts to both regulate and deregulate the industry led to passage of federal laws in 1984 and 1992 governing cable providers leased access and PEG channel requirements.

Prior to 1992, cable providers were prohibited from exercising any editorial control over leased or PEG channels. In the 1992 law, Congress enacted three provisions empowering cable providers to permit or restrict leased access or PEG programming that depicts sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards (in other words, indecent content).

The first provision permitted, but did not require, cable operators to enforce rules against indecency on PEG or leased access channels. The second was an affirmative command: If an operator decided to permit indecent content over leased access channels, it had to limit it to a single channel and block access unless a cable subscriber requested access (the segregate-and-block requirement). Third, the 1992 law required the FCC to implement regulations that would allow cable operators to prohibit similar content on PEG access channels.

A coalition of cable programmers and viewers challenged parts of the law under the First Amendment. That 1996 Supreme Court case, Denver Area Telecommunications Consortium, Inc. v. FCC, is the main precedent cited by WASHLITE against Fox. The decision itself is a thicket there are six different opinions but the bottom line is that it does not stand for the proposition that cable programmers are unprotected by the First Amendment when their content is distributed by a third-party cable operator, quite the contrary.

Crucially, the majority found that the second provision, the affirmative segregate-and-block requirement for leased access, was a violation of the First Amendment rights of programmers and operators. Six justices agreed (Justices Stephen Breyer, Ruth Bader Ginsburg, Anthony Kennedy, Sandra Day OConnor, David Souter, and John Paul Stevens). Three justices Chief Justice William Rehnquist, and Justices Antonin Scalia and Clarence Thomas dissented. And WASHLITE relies on this dissent, which, as explained below, also does not hold that cable programmers are unprotected by the First Amendment.

Indeed, the action in the case was around the first and third provisions. Confusingly, two justices Kennedy and Ginsburg would have struck down all three provisions. And, three justices Thomas, Scalia, and Rehnquist would have upheld all three provisions (thus they concurred in upholding the first provision). Justice OConnor would have upheld the first and third provisions.

Accordingly, the Court upheld the first provision, which permitted but did not require cable operators to limit indecent content on leased and PEG channels, by a vote of 7-2. As noted, the second provision was struck down by a vote of 6-3. And the third provision, permitting operators to regulate indecent speech on PEG channels, was held unconstitutional by a vote of 5-4. (Justices found that, unlike leased channels, PEG programming was, one, unlikely to contain indecent content and, two, was provided for in local franchise agreements, meaning that a federally recognized right to limit indecent speech could interfere with those agreements.)

Returning to the dissent relied on by WASHLITE, as noted, Justice Thomas, joined by Chief Justice Rehnquist and Justice Scalia, would have upheld all three provisions. For the first and third provisions, Justice Thomas focused on their permissive nature that is, they did not forbid cable operators from carrying indecent content, and therefore did not burden the First Amendment rights of cable programmers (note that Justice Thomas is acknowledging that such rights exist).

Rather, the first and third provisions restored editorial discretion to the cable operator. As Justice Thomas reasoned, the cable operators were the ones harmed by the PEG and leased access requirements, like a bookstore forced to sell books published on the subject of congressional politics. This is what WASHLITE cites in their brief they note that Justice Thomas held that cable programmers do not have an affirmative right to force a private cable operator to carry content, but Justice Thomas did not say that content providers lack First Amendment rights.

Further, with respect to the second provision, the segregate-and-block requirement for cable operators who decide to carry indecent programming, far from eschewing First Amendment rights for the cable programmers, Justice Thomas expressly recognizes them. Unlike the first and third provisions, the segregate-and-block requirement clearly implicates [the cable programmers and viewers] rights, Justice Thomas wrote.

But, Justice Thomas applied strict scrutiny the highest level of constitutional scrutiny, which courts must apply to government restrictions on speech based on its content and found that the government had met its burden to show the second provision was narrowly tailored to satisfy a compelling government interest. In other words, the dissenting justices would have found that, while cable programmers have First Amendment rights, the government had a really good reason to require operators to segregate and block indecent content (to protect children) and that other means to do so, like the V-chip, were not up to the task.

At base, WASHLITE makes two legal errors. One, it relies on a dissent in a case where the majority expressly found First Amendment protections for cable programmers on a third-party cable system. Two, it misconstrues that dissent. Rather than holding that cable programmers have no First Amendment rights, the dissent would have found that in the context of indecent programming the segregate-and-block requirement satisfied the strict in theory, fatal in fact high bar of strict scrutiny analysis. WASHLITE has failed to even advance an argument as to why the same analysis should apply in the context of a state consumer protection lawsuit seeking to penalize the exercise of editorial discretion on a news channel.

Two final points are in order.

First, not only does WASHLITE misstate the law with respect to cable, it does so with respect to print and over-the-air broadcast media as well. The only medium of communication subject to slightly less First Amendment protection under current law is bunny ears broadcasting that is the use of the electromagnetic spectrum to broadcast audio and visual information over the air. This is because, one, spectrum is scarce, meaning government intervention is theoretically justified to preserve viewpoint diversity, and, two, its pervasive, meaning that, in essence, children could be inadvertently exposed to indecent speech absent government regulation.

Further, that limited exception for over-the-air broadcast is itself now controversial, as the advent of the internet, the conversion of analog signals to digital, and other technological advancements that have mitigated scarcity and allowed for greater consumer control, have undercut the legal justifications for the Red Lion and Pacifica decisions allowing government regulation of over-the-air content.

Second, and as noted, WASHLITEs argument is not limited to cable. It is effectively saying that when a news organization uses a third party to get its news to the public, the content of that news receives no First Amendment protection.

Among other things, that logic would extend to newspapers who use third-party contractors to deliver the physical paper or rely on internet service providers to distribute digital content. It would extend to syndicated radio programs who sell content to third-party broadcasters. And it would apply to the broadcast networks. ABC, CBS, the CW, FOX, and NBC would only be protected when their programming is broadcast by owned-and-operated stations. PBS wouldnt be protected at all because it doesnt own its member stations.

In fact, that logic would strip First Amendment protections from this blog post because the Reporters Committee relies on a third party to host our website and third-party internet and technology providers to transmit our speech to the public.

The COVID-19 pandemic is both a public health crisis and a profound challenge to civil liberties here and around the world. And it is a political crisis that is provoking intense and acrimonious policy debates at all points on the ideological spectrum. But that debate means that the First Amendment matters more now, not less, and regardless of who is doing the speaking or debating, it should be vigilantly protected. WASHLITEs legal theory would limit the ability of all Americans to report the news or, more broadly, speak freely on one of the most important public policy debates in generations.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.

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Fox News lawsuit would strip First Amendment protection from cable news, internet - Reporters Committee for Freedom of the Press