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Underneath the myriad political stories dominating the news sucking up time and energy like traffic on a Los Angeles freeway, a culture war ripples like an earthquake fault line underneath our feet. Religious liberty, however unpretentious and boring it may appear to be, remains a pressing issue on the importance of societal well-being. Last week, there was another victory for schools associated with all faiths.

Joanne Fratello was the principal of St. Anthony School. As such, she led students in religious activities such as prayer, mass, and encouraging religious-based curriculum. The school eventually did not renew Fratello's contract when they determined she was not advancing the school's Catholic values.

So she sued. Her lawyer claimed the school was not allowed to hire a principal who would promote the Catholic faith at St. Anthony School.

The Becket Fund for Religious Liberty, which represented the school, announced that a New York court recently ruled St. Anthony School and the Roman Archdiocese of New York "can choose a principal who shares their faith." Eric Rassbach, deputy general counsel at Becket, a nonprofit religious liberty law firm, said, "The court saw right through this blatantly anti-Catholic lawsuit, agreeing with the Supreme Court that the church, not the state, should pick religious leaders."

It was clear in the opposing trial lawyer's arguments he was vehemently opposed to religious freedom. He "accused the Catholic Church of being "dangerous to society," the Russian Orthodox Church as "indoctrinating children with Stalinist communism," and the Supreme Court's unanimous decision as an aid to "potential jihadists.'" Such rhetoric is not only divisive, even for a lawyer, but more importantly has no place in a court of law when the First Amendment to the U.S. Constitution clearly reads, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

In the decision, which went to the Second Circuit Court of Appeals, the court ignored the opposing counsel's illogical bluster and instead said there is historical precedent for this case when "a stammering Moses was chosen to lead the people, and a scrawny David to slay a giant." That a New York appellate court would cite centuries-old Jewish history for a 2017 religious liberty case should make any First Amendment fanatic's heart skip with glee even as it no doubt filled opposing counsel with disdain for religious history.

This aligns with a similar decision the Supreme Court unanimously decided five years ago, when the state tried to intervene with a Lutheran school about what kind of leaders the school could choose.

Even though religious liberty cases keep popping up in the court system nationwide, it's heartening to see (for people of all faith or no faith) that the First Amendment remains authoritative and secure.

That said, when cases like this, where a woman sues a religious school because she believes she was unlawfully fired because that school reserved the right to hire someone who promotes their religious values, reaches an appellate court, religious liberty advocates must remain vigilant.

Nicole Russell is a contributor to the Washington Examiner's Beltway Confidential blog. She is a journalist in Washington, D.C., who previously worked in Republican politics in Minnesota. She was the 2010 recipient of the American Spectator's Young Journalist Award.

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Even in (religious liberty) victory, First Amendment advocates must ... - Washington Examiner

The First Amendment promises that, among other things, Congress shall make no law ... abridging the freedom of speech but, in reality, there are always some legal restrictions on self-expression, as upheld by the Supreme Court.

One of the exceptions is for commercial speech, which is generally defined as speech intended for commerce and aimed at consumers or potential consumers. Its a legally tricky area of law in which the courts have determined the purpose of the speech and its audience determines whether outright lies or significant omissions are subject to First Amendment protections.

And its an area of law the anti-abortion movement seems determined to exploit in an effort to gain the right to mislead people who seek medical care from any health care provider opposed to abortion or birth control.

Whether the anti-abortion movement has a First Amendment right to lie to pregnant patients is the crux of a number of lawsuits in Illinois, consolidated by the courts, in which 20 crisis pregnancy centers are suing the state. They claim that their constitutional rights will be violated by a new rule that went into effect on Jan. 1. The rule requires that all medical professionals adhere by a standard of care that includes informing patients of all their medical options for a given diagnosis or situation, regardless of whether or not a provider is morally opposed to a given relevant option.

Felicia Morris-Bolar, center director of Planned Parenthood in the Bronx, N.Y., works in her office with a view from her window of the EMC Pregnancy Center signage.

Though broadly written, the law acts as a revision to Illinois Health Care Right of Conscience Act, a decades-old state law that was passed following Roe v. Wade, in order to ensure that providers who were opposed to abortion for religious reasons were legally able to recuse themselves from performing the procedure. The new amendment still doesnt force anyone to perform a procedure to which they have religiously motivated objections, but it does require that they inform their patients about everything relevant to their care and conditions. In other words, it is now illegal for a reproductive health care provider to not tell a patient about the existence of contraception or abortion.

But crisis pregnancy centers are, essentially, health care centers though they dont function like many other medical providers. Still, they often advertise and present themselves as full-fledged medical facilities, even when they are mostly avenues through which anti-choice activists some of whom are licensed medical professionals can try to convince people facing unintended pregnancy to avoid abortion.

So now, some of these Illinois-based CPCs claim that the new amendment violates their First Amendment rights by requiring them to mention procedures which they oppose on religious grounds.

The new amendment wasnt, however, intended to target crisis pregnancy centers, according to Lorie Chaiten, director of the Reproductive Rights Project at the American Civil Liberties Union of Illinois. As Chaiten explained in an interview with Mic, the new amendment was designed to ensure that all patients in Illinois receive care that meets the standards to which any given medical specialty is held, regardless of the religion of the provider. Legally, medical professionals are evaluated by whether they meet a standard of care a certain degree of skill and knowledge that would be considered the norm amongst peers when it comes to evaluating whether malpractice has occurred. Chaiten explained that the bill was designed to help pregnant people get information about all their medical options, whether or not the doctors involved would participate in carrying out the patients chosen course of action.

Stages of a fetus are displayed at the Illinois Right To Life a table while Republican presidential hopeful and former Arkansas Governor Mike Huckabee speaks at the Freedoms Journal Institute for the Study of Faith and Public Policy 2015 Rise Initiative on July 31, 2015 in Tinley Park, Illinois.

The ACLU of Illinois was one of the leading forces in the state working to pass the new amendment to guarantee that patients were not denied knowledge of treatment options at the expense of a providers religious beliefs.

For example, Chaiten pointed to a situation in which a pregnant woman who had planned to have a tubal ligation could be wheeled into an operating room for a C-section, totally unaware that her Catholic doctor wouldnt perform the tubal ligation. In that case, the woman might have to have a risky second surgery. The surgeons objections should have been made clear prior to the initial surgery.

Crisis pregnancy centers being forced to disclose the full range of a peoples medical options is simply a side effect of the larger amendment. Because health care provider is defined very broadly under the statute, anybody who issues any aspect of the provision of health care is covered by the statute by definition, Chaiten said.

It means that crisis pregnancy centers and the people who work in them who hold themselves out as health care providers are covered by Right of Conscience and now must also meet the obligations of this new amendment.

Chaiten doesnt have a lot of sympathy for the CPCs arguments that they have a First Amendment right to keep from telling their patients the full truth. You dont get a free pass. When every other health care provider has to give standard of care information, so do you, Chaiten says. Its not like you have to say, abortion is good. Thats not what it is.

And, there is legal precedent for the government to regulate commercial and professional speech in a way they cant with other forms of speech, Kelli Garcia, senior counsel with the National Womens Law Center, said.

Garcia said that this area of First Amendment law is pretty well established because the government has an interest and a duty to protect the health and well-being of its citizens.

NEW YORK, NY - MARCH 25: Participants in the International Gift of Life Walk, a pro-Life, anti-abortion event in New York, New York on March 25, 2017. Photo Credit: Rainmaker Photo/MediaPunch/IPX

Chaiten said that, in a number of amicus briefs theyve filed on these such issues, the ACLU has noted that patients make decisions about where to go based on the information a provider advertises, just as they make decisions about the kind of treatment they will receive based on the kind of information a provider gives them. She explained that this is exactly the sort of speech the Supreme Court envisioned as commercial speech, so that it could constitutionally be regulated to require accuracy.

Meanwhile, the challenges to Illinois amendment come on the heels of the news that the Ninth Circuit Court of Appeals moved to uphold San Franciscos Pregnancy Information Disclosure and Protection Ordinance another law recently challenged by CPCs. The San Francisco law prohibits CPCs from making false or misleading statements claiming that they offer abortions, emergency contraception or referrals to abortion providers.

The NWLCs Garcia says the Ninth Districts ruling speaks to exactly the issues now at play in Illinois.

We have truth in advertising laws that exist in other realms, and crisis pregnancy centers shouldnt be able to say were going to get out of the standards, the rules and regulations that regulate everyone else, Garcia says. People expect when they see advertisements that they get what they expect.

And in both San Francisco and Illinois, Garcia says, the laws simply require that anyone who positions themselves as a health care provider to live up to the same standards as all health care providers.

Continued here:
Why pro-life doctors want the First Amendment to protect their right to lie to patients - Mic

Shortly before its summer recess, the U. S.Supreme Court unanimously issued a pair of concurrent rulings concerning the right of freedom of speech under the First Amendment. Although neither arose in Minnesota, the pair are of particular interest and importance here.

MinnPost photo by Jana Freiband

Marshall H. Tanick

Both cases were significant, as are nearly all opinions of the high court, since the tribunal hears and decides only about 70 cases a year, less than 1 percent of the civil and criminal lawsuits it is requested to adjudicate annually. One of these rulings deservedly got ample public glare, perhaps even more than merited, while the other received much less attention than it warranted.

The former, Matal v. Tam[PDF], struck down a provision of the federal trademark law forbidding registration of any disparaging name or markthat reflects "contempt or disrepute" for an individual, group, or organization. The challenge was brought by an Asian-American rock musicband known as "Slants," a reference to the derogatory phrase "slant-eyes" for Asian-Americans, after the Trademark and Patent Office refused to accept its name for legally protected intellectual property. The justices, in a ruling written by Justice Samuel Alito, reasoned that the proscription constitutes impermissible "viewpoint" censorship.

The ruling garnered lots of attention and accompanying acclaim because of its popular-culture subject matter. But it also was noteworthybecause of its seemingly fatal implication for the Trademark Office's declination of the nickname "Redskins" for the professional football team representing the nation's capital. The high court refused last fall to review that rulingat the same time as it took on the "Slants" case, but theoutcome in the rock-band case maydoom the decisiondisallowing the "Redskins" appellation.

That issue has particular resonance here.A number of leaders of the Native American community, along with many supporters, have vigorously opposed use of nicknames by sports teams they deem to denigrate them, although there are questions regarding the breadth of that aversion among rank-and-file Native Americans. As a result, school boards throughout the state have removed and replaced offensive Native American-related appellations from their squads, which has also occurred in other jurisdictions and at both public and private educational institutions.

Additionally, the Native American objectors, represented by a Minneapolis law firm, obtained the ruling from the Trademark office canceling the trademark of the "Redskins" name and logo, although that determination now is of dubious validity in light of the outcome of the "Slants" suit.

The contretemps has not been lost on the media, including some in Minnesota, that have struggled for years over how to report the names of athletic teams that have versions of Native American nicknames, particularly professional baseball and football teams.

The other high court free-speech decision, though, may have even more widespread significance. The case, Packingham v. NorthCarolina, concerned a state law that barred registered sex offenders from using any social media that is accessible to children. The Supreme Court, as in the "Slants" case, invalidated the measure as an unlawful restriction on freedom of expression.

In so doing, the decision authoredby JusticeAnthony Kennedy noted the ever-increasing and "protean" nature of the internet, pointing out that the number of Facebook users is thrice the population of the North American continent. Recognizing these features, the ruling equates the internet with traditional expressive forums like parks and other public places where freedom of speech is allowed to be largely untrammeled. That portion of the decision is suggestive that restraints on internet communications must besparse or virtually nonexistent to pass constitutional muster.

The implication drew some concern fromthree members of the court, led by Justice Joseph Alito, who has emerged as one of the strongest First Amendment defenders on the high court, which has taken on what Harvard Law School professor Noah Feldman describes as a "free speech absolutism" hue. Alito's centrality to this approach was exemplified by a solitary dissent he authored a few years ago supporting the right of anti-gay-rights extremists to protest vocally at military burial services in objection to the expansion of gays and lesbians in the armed services.

Although Alito and the other two, Chief Justice John Roberts and Justice Clarence Thomas, voted with the majority, they joined in a concurring opinion that lamented the far-reaching implications of the decision that would seem to bar any efforts to restrict social media communications by criminal offenders.

It remains to be seen how the ruling will affect conditions imposed on them or, for that matter, commonly accepted limitations on use of social media to engage in offensive or harassingcommunications. These types of restrictions are frequently resorted to by judges in Minnesota, and elsewhere in sentencing of criminal wrongdoers, including sex offenders, as well as inmarital disputes and other inter-personal spats.

The unanimity of these two freedom-of-speech decisions by the Supreme Court reflects their broad acceptanceacross the ideological spectrum. But they also are likely to be heard from again as these rulingsand their underlying reasonings play out inthe courts in Minnesota and around the country.

Marshall H. Tanick is aconstitutional lawattorney with theTwin Cities law firm of Hellmuth & Johnson.

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First Amendment: Two recent Supreme Court decisions are of particular interest and importance in Minnesota - MinnPost

The Knight First Amendment Institute July 11 filed a lawsuit against President Donald Trump and his communication teams, claiming they are violating the Constitutions First Amendment by blocking people on Twitter.

The lawsuit was filed in the Southern District of New York on behalf of seven people who were blocked by the presidents @realdonaldtrump account because they criticized the president or his policies on the social media, the institute said in a news release.

The suit hopes to have the court determine that Trump and his teams actions constitute viewpoint-based blocking and is unconstitutional.

President Trumps Twitter account has become an important source of news and information about the government, and an important forum for speech by, to, or about the president, Jameel Jaffer, the Knight Institutes executive director, said in a statement. The First Amendment applies to this digital forum in the same way it applies to town halls and open school board meetings. The White House acts unlawfully when it excludes people from this forum simply because theyve disagreed with the president.

About a month prior to the lawsuit being filed, the institute wrote a letter to the White House suggesting it would file suit if the president didnt unblock the individuals.

The institute, which never received a response from the White House, said that the Trump administration has promoted the @realdonaldtrump account as a primary communication channel between the president and the public including making formal announcements thus constituting it as a public forum protected by the First Amendment.

The blocking prevents or impedes these people from reading the presidents tweets, responding directly, or participating in the discussions that take place in the comment threads generated by the presidents tweets, the institutes release said. The complaint argues that the @realDonaldTrump account is a public forum under the First Amendment, meaning that the government cannot exclude people from it simply because of their views, it added.

The lawsuit also contends that the White House is violating the seven individual plaintiffs First Amendment right to petition their government for redress of grievances.

The White House is transforming a public forum into an echo chamber, said Katie Fallow, a senior staff attorney at the Knight Institute, in a statement. Its actions violate the rights of the people whove been blocked and the rights of those who havent been blocked but who now participate in a forum thats being sanitized of dissent.

Prior to joining the Knight Institute as executive director in June 2016, Jaffer was deputy legal director at the American Civil Liberties Union and director of the ACLUs Center for Democracy.

Born in Canada to Ismaili Muslim parents originally from Tanzania, he is a graduate of Williams College, Cambridge University, and Harvard Law School.

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Knight First Amendment Institute Files Lawsuit Against Trump for Blocking Twitter Users - India West

A federal judge has ruled that a local anti-police-brutality activist has a legitimate free-speech argument to present to a jury about why a former top cop barred her from a weekly CompStat data-sharing meeting.

U.S. District Court Judge Stefan R. Underhill, a Clinton appointee, agreed in a decision released last week that activist Barbara Fairs First Amendment rights might have been infringed and the case should proceed. The city had sought to have the case dismissed.

Underhill ruled that Fair may proceed to seek changes in policy through her suit, but not any money.

The alleged violation stems from a spat two years ago, when the former police chief, Dean Esserman, temporarily shut community members out of the weekly CompStat meetings, after cops complained that Fair used them as a venue to protest the departments treatment of minority communities. Fair contended that Esserman was trying to bar her from meetings until controversy blew over. The day Esserman barred the public from the meeting spurred on by discomfort of some of his officers with the presence of a vocal anti-police-brutality activist he also allowed another member of the community, preacher pal Rev. Boise Kimber, to come upstairs and attend.

In his ruling, Underhill squelched Fairs pursuit of damages, but he agreed to hear her case on injunctive relief. To win the case, the longtime activist must prove that Esserman disliked the content of her speech, rather than the manner in which she gave it, and that he intended to cut off public participation until activists lost interest in using the meeting to speak out.

Fair has continued to speak out publicly against police misbehavior and clash with the department. The police arrested her July 8 for allegedly refusing an order to keep her distance when they were arresting her nephew at a counterdemonstration against a white nationalist recruiting event on the Green. (She denied the allegation.)

And Compstat meetings, less elaborate affairs since Esserman departed the department, are open to the public again.

Fairs attorney, Norm Pattis, called the judges green-lighting of a trial an early win.

Any time that a jury can can [evaluate the conduct of a police officer], thats good to do for the republic, he said. We hope that never again will [the police] decide that some members of the public arent entitled to attend a meeting, when they have invited the public in general. When the community is given a chance to speak, the police department cant put stoppers on it based on the content of what its hearing.

As part of his community policing push, Esserman had opened up these weekly reviews of crime statistics and major cases, known as CompStat, to the public. (The name comes from comparative statistics.) The meetings revolve around reports from policing districts about crimes over the past week and plans for the upcoming week. Under Esserman, they expanded to include reports to and sometimes from the community, with dozens of local people joining the cops at headquarters on Thursday mornings to listen in on the departments crime-fighting strategies. (The department brass review pending investigations in greater detail at daily intelligence briefings, which are closed to the public.)

It was not, however, a forum for discussion, Esserman stated in his deposition. It was to let people see how the police department worked in a transparent way, and if people had presentations they wanted to make we would try to schedule them in.

Fair sought to make it a forum. In March 2015, after video of a black 15-year-olds takedown during an arrest emerged, Fair joined a protest in front of City Hall. There, she allegedly overheard cops and counter-protestors making racially charged remarks. Shortly after, Fair went to a CompStat meeting to speak up.

At the meetings end, she asked the assistant chief for permission to speak. (Esserman was absent.) Unrelated to any of the discussion that morning, she proceeded to criticize the department and called out the foul-mouthed officers. Fair said that one cop looked upset by her comments, but another officer told him to let Fair voice her concerns. I know I ruffled some feathers, she admitted in a follow-up email to the assistant chief. Still, no one present reprimanded her, asked her to sit down or escorted her out of the room.

News later reached Esserman, though, that Fair had been disruptive, loud, and argumentative. When she returned to Union Avenue for Compstat the following week, Esserman asked Fair to leave, saying she had made people very uncomfortable. After an exchange, Fair said, As long as its a public meeting, Im going to sit here. Esserman decided to close it all off.

Same thing the following week: Fair and State Sen. Gary Winfield couldnt even get past the front desk to the meeting. (Rev. Kimber, on the other hand, a friend of the chief, was buzzed in and went upstairs to attend the meeting.) Esserman maintained in his response to the suit there was no ban on Fairs attendance; she didnt subsequently try to go back.

In his initial analysis of the evidence, in which he tried to give Fairs arguments the best light possible, as a jury might similarly do, Judge Underhill explained that, to prove a First Amendment violation, the plaintiff must show (1) that her speech was protected by the Constitution, (2) that the forum was public and (3) that the justifications for excluding her speech werent up to snuff.

Fairs speech, addressing racist strains in the police department, is clearly protected speech, Underhill wrote, referencing an established right to complain to public officials.

Likewise, Essermans admittedly deliberate choice to open prior CompStat meetings made them limited public forums, Underhill added. Thats true even though observers generally didnt speak, he said. The judge cited a 1991 ruling about ACT UPs intent to hold a silent protest in a state legislatures gallery: [T]he elected officials receive the message, by the very presence of citizens in the gallery, that they are being watched, that their decisions are being scrutinized, and that they may not act with impunity outside the watchful eyes of their constituents, that precedent said.

Esserman argued that, since he opened the meetings, he could have closed them at any time.

Sure, Underhill wrote, thats true of any public forum. [H]owever, as long as the forum remains open, government regulations of speech within it must meet the standards of a public forum.

What are those standards? Underhill said speech may be limited only by content-neutral regulations time, manner, place unless theres a compelling state interest. In fact, he noted, Esserman might have been on surer footing if he had shut down the public participation entirely. But because the break was only temporary, it implied that the chief didnt like what Fair had to say on a current event, the judge noted. He referenced several rulings that arbitrariness and unpredictability about when a forum is open to the public can easily cover up censorship, as in choosing to shut down a park on the day a particular person is scheduled to speak.

It seems clear that a temporary shutdown intended to stifle discussion on a particular topic, with plans to reopen the forum after controversy surrounding that topic had been suppressed constitutes impermissible censorship under any First Amendment analysis, Underhill wrote.

Esserman argued that the case is mooted, to some extent, because hes no longer on the job. Indeed, at this past Thursdays CompStat meeting, the new chief, Anthony Campbell, said the meetings are open to the public. The only restriction might be if journalists are asked not to publish information about an imminent apprehension, he said.

Pattis responded that the First Amendment rights at issue could crop up with any police chief, not just the last one. Whats important is that the department realize that it has enduring obligations to the community, and that those do have the force of law behind them, he said. This will make sure Campbell isnt tempted to do the same.

A trial will likely be scheduled for sometime in the fall, Pattis said.

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Judge Allows First Amendment Trial - New Haven Independent