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Officials were on notice they were flouting decades of precedent

It was a new day, but same result for Iowa State University.

After asking a federal appeals court to reconsider its February ruling that the public university violated the First Amendment rights of pro-marijuana activists on campus, ISU got an even worse ruling earlier this month.

The 8th U.S. Circuit Court of Appeals doubled down on its original decision in Gerlich v. Leath that ISU singled out the campus chapter of the National Organization for the Reform of Marijuana Laws (NORML) by not letting it use the university logo on its T-shirts.

In a finding that could endanger college officials across the 8th Circuits jurisdiction of Arkansas, Iowa, Minnesota, Missouri, Nebraska, and North and South Dakota, the appeals court refused to shield individual administrators from liability.

The case had united a broad coalition of national college groups, from pro-life activists to press freedom defenders and libertarians, in favor of NORML ISU leaders Paul Gerlich and Erin Furleigh.

We wanted the court to be aware that discrimination against speakers on campus is a common occurrence and a real problem, Casey Mattox, director of the Alliance Defending Freedoms Center for Academic Freedom, told The College Fix in a phone interview.

The alliance, which represented several of the friend-of-the-court filers, conveyed to the judges that viewpoint discrimination on campus, particularly against conservative speakers on university campuses, has a long track record and needs to be addressed, said Mattox.

No reasonable university official can think this is government speech

In an opinion for the three-judge panel, Judge Diane Murphy wrote that ISU had discriminated against Gerlich and Furleigh because of their viewpoints and political pushback from Iowa politicians.

In addition, the court found ISU did not engage in government speech by letting campus groups use its trademarks: Rather, it provided a limited public forum that facilitated the speech of private persons.

NORML ISU also did not violate the terms of the limited public forum, because the organization advocates for reform to marijuana laws, not the illegal use of marijuana, according to the panel.

MORE: Potheads, press and pro-lifers unite for student speech

The judges split, however, on the issue of qualified immunity, which excludes government officials acting in their official capacity from civil lawsuits unless they violate a clearly established constitutional or statutory right.

Murphy and Judge Jane Kelly said ISU administrators, including then-President Steven Leath, should have been aware of legal precedents going back decades that ban universities from using viewpoint discrimination in a limited public forum.

It was clearly established when administrators singled out NORML ISU in rejecting a series of T-shirt designs the chapter had submitted, according to the judges.

Judge James Loken wrote a dissent specifically on the qualified-immunity issue, saying administrators were neither plainly incompetent nor knowing lawbreakers when they rejected a string of proposed T-shirt designs.

The court cites no case in which school officials administering a trademark licensing program violated, or were even accused of violating, the First Amendment by denying proposed uses of the schools registered trademark, Loken wrote.

Its trademark licensing policy already prohibited products causing potential health risks such as tobacco: Based on these undisputed program policies, it was far from clear prior to this litigation that ISUs trademark licensing program was not a form of government speech.

Loken blamed Gerlich, then the president of NORML ISU, for publicly suggesting the university gave its stamp of approval to pro-marijuana advocacy. Gerlich bragged in the media that the original approval of the clubs T-shirt reflected nothing but support from the university, support for the group that was blowing our minds.

MORE: Court tells ISU to stop suppressing pro-weed activists

Judge Kelly challenged Lokens dissent in a concurrence, saying qualified immunity does not require a case directly on point nor a previous ruling that the action was explicitly unlawful:

At the time of the challenged actions in fall 2012, the defendants were on notice of several cases that clearly established that their conduct violated plaintiffs First Amendment rights. In at least four cases, the Supreme Court has held that a university creates a limited public forum when it distributes benefits to recognized student groups.

Here, it is undisputed that ISU granted recognized status to NORML ISU as a student organization. ISU concluded that NORML ISUs purpose was consistent with the broad educational mission of the university, but it made clear that it does not support or endorse the purposes of any registered organizations, including NORML ISU.

Kelly said the university only claimed its trademarks were government speech because of the purported confusion around the NORML shirt: No reasonable university official could have relied on this single example of confusion, in a field of at least 2,195 student organization uses of ISU marks, to convert a historic forum for student speech into government speech.

Iowa State rebuked more severely by 8th Circuit in second ruling on First Amendment and marijuana by The College Fix on Scribd

Free speech has impacts on other people, and ISU must recognize that

We are very happy the 8th U.S. Circuit Court reaffirmed its earlier finding that Iowa State had violated our clients First Amendment rights, Robert Corn-Revere, head counsel for the plaintiffs and prominent First Amendment lawyer, told The College Fix in a phone interview.

Simply using the label trademark doesnt make government action immune from the First Amendment. College administrators need to be aware that if they violate students First Amendment rights there can be consequences, he said.

NORMLs national office referred The Fix to Dan Viets, the head of its Missouri affiliate, for comment. Iowa State was clearly discriminating against the NORML chapter because they did not agree with their message, Viets said in a phone interview, calling the incident an unusual occurrence for a NORML campus chapter.

ISU hasnt decided what its next steps will be, lead counsel Mike Norton told The Fix in a phone interview.

He said the 8th Circuits new ruling wont have much effect on how the university handles First Amendment issues: In the near term I dont think the ruling will have an impact except those directly related to trademark use.

While Iowa State is committed to the protections of the First Amendment, it cant ignore the impact that speech has on other people, Norton said.

MORE: Judge says students can sue president for t-shirt censorship

The case was reopened in March after the appeals court granted ISUs petition, according to the Foundation for Individual Rights in Education, which sponsored the case through its three-year-old Stand Up for Speech litigation project.

The NORML ISU case was part of the first group of cases to be litigated under the project, and its the only one that has made it to an appeals court.

Iowa State has consistently lost in court. It lost its motion to dismiss more than two years ago, and a year later the district court issued a permanent injunction preventing the university from using the trademark policy to prohibit NORML ISU from making shirts containing marijuana symbols. It also lost on qualified immunity then.

Groups that joined the Alliance Defending Freedom brief in support of NORML ISU were Students for Life of America, Young Americas Foundation, Young Americans for Liberty, Ratio Christi and Christian Legal Society.

MORE: How license plates are like campus speech

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IMAGE: Africa Studio/Shutterstock, NORML ISU

About the Author

Zachery Schmidt is a senior at Western Washington University where he is majoring in political science and public relations. In his free time, Zach enjoys exercising, reading and writing.

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Iowa State officials knowingly violated students' First Amendment rights, appeals court says - The College Fix

For example, Facebook generally allows the sharing of animal abuse, a category of speech the Supreme Court deemed protected in 2010. But diverging from First Amendment law, Facebook will remove that same imagery if a user shows sadism, defined as the enjoyment of suffering.

Similarly, Facebooks manual on credible threats of violence echoes First Amendment law on incitement and true threats by focusing on the imminence of violence, the likelihood that it will actually occur, and an intent to credibly threaten a particular living victim.

But there are also crucial distinctions. Where First Amendment law protects speech about public figures more than speech about private individuals, Facebook does the opposite. If a user calls for violence, however generic, against a head of state, Facebook deems that a credible threat against a vulnerable person. Its fine to say, I hope someone kills you. It is not fine to say, Somebody shoot Trump. While the government cannot arrest you for saying it, Facebook will remove the post.

These differences are to be expected. Courts protect speech about public officials because the Constitution gives them the job of protecting fundamental individual rights in the name of social values like autonomy or democratic self-governance. Facebook probably constrains speech about public officials because as a large corporate actor with meaningful assets, it and other sites can be pressured into cooperation with governments.

Unlike in the American court system, theres no due process on these sites. Facebook users dont have a way to easily appeal if their speech gets taken down. And unlike a government, Facebook doesnt respond to elections or voters. Instead, it acts in response to bad press, powerful users, government requests and civil society organizations.

Thats why the transparency provided by the Guardian leak is important. If theres any hope for individual users to influence Facebooks speech governance, theyll have to know how this system works in the same way citizens understand what the Constitution protects and leverage that knowledge.

For example, before the Guardian leak, a private Facebook group, Marines United, circulated nude photos of female Marines and other women. This prompted a group called Not in My Marine Corps to pressure Facebook to remove related pages, groups and users. Facebook announced in April that it would increase its attempts to remove nonconsensual nude pictures. But the Guardian leaks revealed that the pictures circulated by Marines United were largely not covered by Facebooks substantive revenge porn policy. Advocates using information from the leaks have begun to pressure Facebook to do more to prevent the nonconsensual distribution of private photos.

Civil liberties groups and user rights groups should do just this: Take advantage of the increased transparency to pressure these sites to create policies advocates think are best for the users they represent.

Today, as social media sites are accused of spreading false news, influencing elections and allowing horrific speech, they may respond by increasing their policing of content. Clarity about their internal speech regulation is more important now than ever. The ways in which this newfound transparency is harnessed by the public could be as meaningful for online speech as any case decided in a United States court.

Margot E. Kaminski is an assistant professor at the Ohio State University Moritz College of Law. Kate Klonick is a Ph.D. candidate at Yale Law School.

Margot E. Kaminski and Kate Klonick

Follow The New York Times Opinion section on Facebook and Twitter (@NYTopinion), and sign up for the Opinion Today newsletter.

A version of this op-ed appears in print on June 27, 2017, on Page A23 of the New York edition with the headline: Speech in the Social Public Square.

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Facebook, Free Expression and the Power of a Leak - New York Times

A state District Court hands independent ranchers a long-awaited win.

Last week, the United States District Court for the District of Montana issued a decision that could have major implications for the beef industry inside the state and beyond. Judge Brian Morris upheld a lower courts decision that the beef checkoff program, as currently operated, violates the First Amendment rights of the states cattle ranchers. As as result, the Montana Beef Council (MBC) will only be allowed to collect funds from producers who voluntarily opt in to the program.

Quick refresher: checkoff programs are a mandatory tax the federal government collects on certain agricultural commodities, money farmers are compelled to pay to fund industry research and promotion. Over the years, checkoffs have raised billions of dollarsand have paid for some iconic advertising, from Got Milk? to Beef: Its Whats for Dinner. But theyve also been a sore spot for farmers who claim they dont have enough say over the way the funds are being used, yet are forced to pay even when they feel the message doesnt serve their interests.

To understand why the Montana case could be such a big deal, heres what you need to know: In 2005, the Supreme Court ruled that, in order to be constitutionally viable, checkoff programs must be overseen directly by the federal government. The government, after all, can compel certain forms of speech: I have to fund the military through my taxes, for instance, even if I dont like its actions. Legally, the government is granted that exception only because its supposed to be an extension of the peoples voice already (thanks to our democratically elected representatives). If you dont like a policy paid for by your taxes, the logic goes, you can always vote to change the government. (For more on this, see my piece on the fraught legal history of checkoffs.)

But private entities cannot compel speech, and thats where the Montana case comes in. Beef checkoff money is split evenly between the federal Cattlemens Beef Board and smaller, state-level organizations like the Montana Beef Councilprivate entities not subject to the same level federal oversight. Thats why the Ranchers-Cattlemen Action Legal Fund (R-CALF) filed suit against the United States Department of Agriculture (USDA), arguing that compelling payments to a private organization amounts to an unconstitutional first amendment violation.

The USDA lacks the authority to appoint or remove any of the Montana Beef Councils members. The USDA does not control how the Montana Beef Council spends the checkoff assessments, Judge Morris agreed, in his decision. Defendants claim that it effectively can control the Montana Beef Council through the Beef Board proves incorrect. The Beef Board is not a democratic[ally] accountab[le] body that is mandated to respond to and implement citizenss concerns.

The suits unwitting catalyst was a famous fast food chain: advertisements ran put out byWendys that promoting the companys use of fresh, North American beef in its four-cornered burgers. Since the ads were funded, in part, by the Montana Beef Council, some of the states ranchers felt their checkoff dollars were being used against them. Why were they being forced to fund the promotion of beef that came not just from the U.S., but alsoMexico and Canada?

Thats what I think made the case unique: It was a clear, in-your-face insult to U.S. cattlemen that were paying into the Montana beef checkoff, says Mike Callicrate, a Kansas rancher and activist whos been a longtime critic of the beef checkoff.

Where some saw an insult,R-CALF, another vocal opponent, saw opportunity.

After the Supreme Court ruling that said that the checkoff was government speech, we knew we had to find another avenue, Bill Bullard, R-CALFs CEO, tells me. Thats why we focused on money taken by the states.

The states cattle ranchers will still have to pay into the checkoff program$1 per head of cattle. But the Montana Beef Council will only receive its fifty percent share of that money when a rancher opts in. In Bullards view, state funds like Montanas have long been used to suit the interests of politically powerful meat packers. He thinksthe ruling will deprive them of a crucial source of income, and may help level the playing field between beef producers and processors. (Again,you can read more inmy history of the beef checkoff and its discontents.)

Our industry has been dominated by multinational meatpackers that have been working to vertically integrate and control the supply chain of the U.S. cattle industry, Bullard says. Now, this case gives us hope that were able to pull further away from the integration that the packers have already accomplished, ensuring that we can maintain a widely dispersed family farm system of cattle production in America.

Weve found a court that was willing to take our concerns seriously and act on them. Thats huge.

Its not a done deal yet: USDA may decide to appeal. But it also has the opportunity to respect the ruling, or even play an active role in rolling out voluntary state-level checkoff participation in other statesheading off a raft of potential lawsuits elsewhere. No ones quite sure what will happen, but Dudley Butler of Butler Farm & Ranch Law, which represented the plaintiff, feels that future arguments against this decision would face a tough legal battle.

People look at the constitution sometimes like they look at the Bible, they pick and choose what parts they want to use, he tells me. But the First Amendment right is extremely important. Under our system of government, you just cannot force speech on someoneunless it passes the rigors of being determined by a court it is government speech.

For its part, the Montana Beef Councilwhich was not named in the suitis taking a hard look at its post-ruling future.

As a result of the preliminary injunction, after assessments are collected from Montana beef producers, if they do not provide prior affirmative consent to the Montana Beef Council, their full assessment will be forwarded to the Cattlemens Beef Board for general use on national programs and projects, it says, in a statement. MBC is working through the details to develop a process for this Court Order and a way for producers to provide consent.

It could be an onerous task.And complaints about the federal checkoff program are likely to remain. But for now, the victors are celebrating as they look ahead.

Its probably the biggest thing that independent producers have achieved in trying to get their interests represented by the government, Bullard says. Weve failed to convince Congress to listen to the producers. Weve failed to convince the USDA to listen to the concerns of the producer. But here, in our third branch of government, weve found a court that was willing to take our concerns seriously and act on them. Thats huge.

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Does "Beef: It's What's For Dinner" violate the First Amendment? In ... - The New Food Economy

Washington D.C., Jun 26, 2017 / 11:32 am (CNA/EWTN News).- In one of the biggest religious cases of the term, the US Supreme Court on Monday ruled that a church-owned playground can be eligible for a public benefit program.

Chief Justice John Roberts, delivering the opinion of the Court, wrote June 26 that the exclusion of Trinity Lutheran, the church at the center of the case, from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.

The decision in Trinity Lutheran Church of Columbia, Inc. v. Comer was about religious people being treated just like everybody else, stated Mike Farris, president of Alliance Defending Freedom.

At issue was a playground owned by Trinity Lutheran Church in Columbia, Mo., and operated by the churchs preschool. To resurface the playground for safety reasons, the church had applied for a state reimbursement program that provides rubber surfacing material made from used tires. Trinity Lutheran had ranked the fifth most qualified out of 44 applicants for the program.

The states natural resources department ultimately ruled the church ineligible for the program because of its religious status. The Missouri state constitution forbids taxpayer funding of churches. The Eighth U.S. Circuit Court of Appeals sided with the state.

The Supreme Court reversed that ruling and sent it back to the lower courts.

Justices Anthony Kennedy, Samuel Alito, and Elena Kagan joined Chief Justice Roberts opinion of the Court that the denial of the churchs eligibility for the program violated the free exercise clause. Justice Stephen Breyer filed an opinion concurring in Chief Justice Roberts' judgement.

Justices Clarence Thomas and Neil Gorsuch joined the Courts opinion except for a footnote stating that the decision was about discrimination based on religious identity with respect to playground resurfacing, and does not address religious uses of funding or other forms of discrimination.

I worry that some might mistakenly read the footnote to apply only to playground resurfacing cases, or only those with some association with childrens safety or health, or perhaps some other social good we find sufficiently worthy, Gorsuch wrote.

He added that the general principles here do not permit discrimination against religious exercisewhether on the playground or anywhere else.

Justices Sonia Sotomayor and Ruth Bader Ginsburg dissented from the Courts opinion.

The Church had argued that the new surface would be a safety upgrade for the playground operated by its preschool and used by members of the community during non-school hours.

It was used by both church members and non-members, they insisted, and should not be ruled ineligible for a state benefit program available to other entities just because it is owned by a religious institution.

Opposing the church was the ACLU, which had argued that to make the church eligible for state benefits would be an unconstitutional violation of the establishment clause.

Missouris denial of the church, however, goes too far under precedents of Supreme Court decisions, Chief Justice Roberts wrote, and violates the Free Exercise Clause.

The Missouri law was passed during a time when many other states were passing laws barring public funding of sectarian schools, widely viewed at the time to mean Catholic schools and other religious schools that were not part of the public school system. The laws were modeled after the federal Blaine Amendment, proposed in the 1870s and named after Maine Congressman James Blaine. His amendment was proposed, but never passed by Congress.

In oral arguments in the case, justices also discussed the broader constitutionality of religious groups having access to other public benefits, including a Jewish synagogue requesting a security detail.

Catholic leaders applauded Mondays ruling.

The Supreme Court is signaling in this decision that the government must stop its growing hostility towards religion and religious institutions, and that antiquated and anti-Catholic Blaine Amendments should not be used as a weapon to discriminate against people of faith, Maureen Ferguson, senior policy advisor with The Catholic Association, stated.

For over a century, Blaine Amendments have enshrined into law discrimination against faith-based charities and schools that form an essential part of American society, Ashley McGuire, senior fellow with The Catholic Association, stated. In this case, a state Blaine Amendment was used to justify blacklisting a Christian elementary school from a playground safety program solely on religious grounds.

Blaine Amendments are anti-Catholic in their origin, and getting rid of them is more than a century overdue, she added. Todays decision demands a more fair and inclusive approach to government programs meant to serve all people."

The decision will have an effect in the future, David Cortman, senior counsel with Alliance Defending Freedom, who argued the case for the church before the Court in April, said. Whenever religious people, organizations, see themselves being discriminated against, this case will be the controlling precedent, he added.

Members of Congress also weighed in on the decision. House Speaker Paul Ryan (R-Wisc.) called it an important ruling for religious liberty with profound significance for Americas civil society.

Sen. James Lankford (R-Okla.), co-chair of the Congressional Prayer Caucus and who filed an amicus brief with colleagues on behalf of Trinity Lutheran in the case, stated that todays decision affirms the First Amendment right to the free exercise of religionto have more than just a belief but to live out your faith without discrimination from the government.

The case was ultimately between the church and the states natural resources department. Missouris attorney general recused himself in the case.

Missouris governor Eric Greitens (R) had already announced that in the future, religious institutions could be eligible for benefit programs of the natural resources department. However, the Court stated on Monday that that announcement does not moot this case.

Justice Sonia Sotomayor, in her dissent, stated that this case is about nothing less than the relationship between church and state.

The Court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church, she added. Its decision slights both our precedents and our history, and its reasoning weakens this countrys longstanding commitment to a separation of church and state beneficial to both.

In the majority opinion, Chief Justice Roberts acknowledged that it is true the Department has not criminalized the way Trinity Lutheran worships or told the Church that it cannot subscribe to a certain view of the Gospel.

But, as the Department itself acknowledges, the Free Exercise Clause protects against indirect coercion or penalties on the free exercise of religion, not just outright prohibitions. And a church being denied participation in public benefits because of its religious character can be such an indirect coercion on the free exercise of religion, he continued.

In this case, there is no dispute that Trinity Lutheran is put to the choice between being a church and receiving a government benefit. The rule is simple: No churches need apply.

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Supreme Court rules in favor of church in crucial First Amendment case - Catholic News Agency

To commemorate World Refugee Day (Tuesday, June 20th), Community Initiatives for Visiting Immigrants in Confinement (CIVIC) and over 60 faith leaders and attorneys made a pilgrimage to the Adelanto Detention Facility from Los Angeles to visit with our friends and clients, many of whom had been on a hunger strike the week prior. ICE and GEO Group denied all our visits. In response to a peaceful 5-minute interfaith prayer outside the facility, ICE and GEO Group then put the entire facility on lockdown.

Attorneys and family members who were not part of the pilgrimage and who had already been granted entrance to the facility were expelled from the facility by ICE and GEO Group in response to our prayer. This included young children clinging to their toys. They had driven for hours to visits their parents.

This comes just days after ICE and GEO Group admitted to violating the First Amendment rights of 9 men detained at Adelanto who were brutally assaulted and attacked with pepper spray. The 9 men, who were later joined by 33 women, went on hunger strike at Adelanto to protest substandard medical care, unjustly high immigration bonds, lack of basic respect, and lack of opportunities to connect with family.

When we see abuse in detention, it is our moral obligation to speak up and stand in solidarity with our friends in detention. By denying us access after a peaceful and short prayer, ICE has tried to make us choose between our First Amendment rights and visiting our friends and clients in immigration detention. This is not a choice our government can legally ask us to make.

As an attorney in California, I also was denied visits with 14 of my clients on Tuesday who were detained at the Adelanto Detention Facility. I had received email approval from ICE in advance of Tuesday for four of my legal assistants to conduct legal visits at Adelanto with me. According to the Adelanto Detention Facility rules, attorneys are allowed 24 hour access to their clients in immigration detention. And federal standards require attorneys to have access to their clients seven days a week without pre-approval; only legal assistants require pre-approval by ICE. To visit at Adelanto through regular visitation hours as a family member, friend, or community member does not require pre-approval from ICE or GEO Group.

On Tuesday, we were provided with no reason for why our visits were being denied. The warden of the Adelanto Detention Facility told us that ICE had denied our visits due to the circumstances. However, neither ICE nor GEO Group would define what were the circumstances.

Could the visitation denials be retaliation for CIVICs role in passing a new California law just days before? The new law bans immigration detention expansion and ensures that our state Attorney General can monitor immigration detention facilities. There were already construction vehicles on the Adelanto Detention Facilitys property, and it looked like the facility was attempting to build an expansion. The new California law could prevent this expansion. The facilitys most recent expansion in 2015 resulted in $21 million in additional annualized revenue for GEO Group and its shareholders. While we are not certain why ICE and GEO Group locked us out of the facility, the timing is suspicious.

Photo by Nancy Evans

On other occasions, GEO and ICE have arbitrarily and without valid grounds denied access to attorneys and visitor volunteers associated with CIVIC in retaliation for peaceful protest activities and public statements protected by the First Amendment.

In November 2015, attorneys and legal assistants were denied visits with people on hunger strike.

In May 2015, GEO Group and ICE prevented me from visiting my clients after I lawfully exercised my First Amendment rights.

In August 2013, CIVIC visitor volunteers and I were barred from visiting for over a month at the Adelanto Detention Facility in retaliation again for exercising our First Amendment rights. The ACLU of SoCal and Sidley Austin LLP raised concerns about the 2013 and 2015 denials in a letter dated August 24, 2015, which to this day neither GEO nor ICE has responded to.

Earlier this year, in January 2017, CIVIC filed a federal civil rights complaint about a general increase in family and community visitation denials at Adelanto.

In March 2017, CIVIC filed a federal civil rights complaint, detailing access denials and restrictions in violation of federal policy at Adelanto and 13 other immigration detention facilities in Arizona, California, Virginia, Florida, Georgia, Pennsylvania, and Texas.

While CIVIC and allies remain concerned about general visitation denials and these past First Amendment violations, Tuesdays visitation denials marked a disturbing new Constitutional violation. ICE and GEO Groups retaliation against the faith leaders violated their fundamental right to free exercise of religion.

This denial of freedom of religion mirrors the type of abuse happening inside the Adelanto Detention Facility on a regular basis. Women who went on hunger strike last week explain that they often try to pray in circles, holding each others hands. But the GEO guards physically break up their prayer circles and threaten them with the hole, also known as solitary confinement. ICE has allowed this behavior by GEO Group to go unchecked, despite complaints by people in immigration detention directly to ICE.

When our prayers are stopped by GEO Group, it makes me feel like praying is something bad, said one woman who was on hunger strike last week. But what I say to them is that if being put in the hole is for God, then take me.

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ICE Violates First Amendment Rights of 60 Faith Leaders and ... - HuffPost