Archive for the ‘First Amendment’ Category

Our Love-Hate Relationship With The First Amendment – Greeneville Sun

Common practice for liberals and conservatives now is to take turns calling each other enemies of the First Amendment. The results of this years State of the First Amendment survey gave us the opportunity to consider these insults and after the numbers are crunched, who is the real enemy of the First Amendment?

Well, no one. And, everyone.

Most of our fellow citiziens, regardless of their political ideology, are quite fond of the First Amendment, at least in the abstract. The people who think that the First Amendment goes too far are a minority 22.5 percent of us. A majority of Americans (67.7 percent) think that the press plays an important role as a watchdog on government; a slightly narrower majority (58.8 percent) thinks that freedom of religion should extend to all religious groups, even those widely considered extreme or fringe.

Thats the good news: Even in a time of great political turmoil, were generally supportive of the First Amendments protections.

The bad news: When it comes down to specific applications of the First Amendment, were less positive, and also deeply divided along ideological lines. Both liberals and conservatives have certain pain points where they balk at the amount of protection that the First Amendment provides.

Liberals are more likely than conservatives to think:

Colleges should be able to ban speakers with controversial views.

People should not be able to express racist comments on social media.

Meanwhile, conservatives are more likely than liberals to think:

Government officials who leak information to the press should be prosecuted.

Journalists should not be able to publish information obtained illegally, even if it serves the public interest.

Government should be able to determine which media outlets can attend briefings.

Government should be able to hold Muslims to a higher standard of scrutiny.

Worth noting: Some of these differences in attitude may not be a direct result of whether youre a liberal or a conservative; instead, they might be circumstantial. Do more liberals support press freedoms because thats a core value of liberal ideology or because the press is a watchdog on the government, which liberals dont currently control?

Do more conservatives think that colleges shouldnt be able to ban speakers because of a greater commitment to free speech or because most banned speakers, at least in recent years, have tended to be conservative?

It will be interesting to see in subsequent years if attitudes change as circumstances change.

One thing that unites the majority of Americans right now: Most of us both liberals and conservatives prefer to read or listen to news that aligns with our own views.

Thats true even if you think that the news media reports with a bias, as most Americans do (56.8 percent). Apparently, were not inclined to correct that bias by taking in multiple and varied news sources. Instead, were more likely to double down on the news that fits in with our pre-existing ideological perspective.

This finding is both obvious and disheartening: Everyone likes reading and hearing news that confirms what they already believed. Thats one of the factors that keep us so divided.

The writer is executive director of the First Amendment Center of the Newseum Institute. Contact her via email at lnott@newseum.org. Follow her on Twitter at @LataNott.

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Our Love-Hate Relationship With The First Amendment - Greeneville Sun

First Amendment Issues in the News – Legal Reader (blog)

There have been a number of First Amendment issues in the news recently. Some are rehashes of the same old battles, and others give us more to chew on.

Remember that one about the Christian baker and the gay wedding cake? Yep, thats one of the First Amendment issues coming around again. This fall, newly topped up with conservative darling Neil Gorsuch, the Supreme Court will hear an appeal of theColorado case. Masterpiece Cake Shop v. Colorado Civil Rights Commission concerns Colorado baker Jack Phillips, who refused to bake a cake for the wedding reception being held by David Mullins and Charlie Craig. Mullins and Craig were legally married in Massachusetts in 2012.

Phillips claims that baking the cake would violate his free exercise of religion and would also constitute coerced speech. Lower courts have consistently held that baking a cake would do neither of these, but is considered to be illegal discrimination due to the couples sexual orientation. This last bit is of key importance when only 22 states have anti-discrimination laws that extend protection to gay people. On one hand, the cake fight is bigger than it first appears: its a proxy in the culture war, and will have an outsized impact on the way some civil rights issues are decided in the future. On the other hand, if baking a cake means that the baker is actually endorsing or taking part in a same-sex union, perhaps gun shop owners will one day be considered to have participated in any crimes committed with the guns they sold. Hey, its possible, right?

Next in the series of First Amendment issues is the Trinity Lutheran v. Comer decision. The Supremes came down on the side of Trinity Lutheran, the church whose ministry involved running a daycare and playground for children. Amazingly, seven of nine justices agreed (for differing reasons) that public funds could not be denied to a church simply because it has a religious mission. Although some majority-opinion justices used language meant to limit the scope of their decision, theidea that governments must provide resources directly to a religious organization has implications for many future policy fights sure to arise, including funding of faith-based education. However, if funds provided to beef up a church playground are not considered fungible in the context of the Establishment clause, perhaps similarly non-fungible funds can be provided for Planned Parenthoods public health mission, free from any involvement with the Hyde Amendment.

Its not just the Supreme Court ruling on recent First Amendment issues. A Montana state court recently decided that the USDAs checkoff program constituted a form of coerced speech, paid for by the states independent cattle ranchers. Checkoff programs are tiny, mandatory taxes paid by producers of certain agricultural commodities. These funds go towards marketing efforts that supposedly benefit the producers of that commodity. This is where ad campaigns like Got Milk? or Beef: Its Whats For Dinner come from. In this case, the Montana Beef Council used checkoff money to partially fund a commercial claiming that Wendys fast food hamburgers are made using North American beef. American ranchers rankled at having to pay to promote Canadian and Mexican beef exports. As a result, the ranchers must still pay the dollar-per-head checkoff, but non-governmental organizations will only receive a portion of the proceeds from ranchers who opt in.

One of the First Amendment issues before Congress is whether or not churches should be able to back political candidates while also retaining their tax-exempt status. House Republicans amended a spending bill to de-fund IRS efforts at enforcing the Johnson Amendment, originally signed into law by Dwight Eisenhower in 1954. While priests and pastors have always been free, as private citizens, to endorse any political position they like, this would potentially turn the pulpit itself into your Facebook feed, minus the cat pictures. Interestingly, non-Christian houses of worship, such as mosques and synagogues, dont seem to be included in the conservative liberalization effort.

Finally, lest we mistake First Amendment issues as being about the rights of all Americans to express their sincerely held beliefs, we get to those whose free speech matters most: the wealthy. Since the landmark Citizens United decision in 2010, money has been even more equated with speech than ever before. Those with wallets full of words wasted no time making sure that their shouting could be heard over those who could afford only humble whispers. In this case, our loudest citizens are insisting that an agenda that benefits them at the cost of most of the rest of us be passed post haste, or the checkbooks would close and perhaps the Republicans would lose their majority in Congress in the next election. One can only hope.

Related: Fungibility Key in Trinity Lutheran Case

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First Amendment Issues in the News - Legal Reader (blog)

Facebook Challenges Gag Order, Cited First Amendment Rights – Legal Reader (blog)

A gag order was recently issued by a U.S. court preventing Facebook from commenting about three government search warrants issued over a three-month period. The warrants were accompanied by a nondisclosure order from a District of Columbia Superior Court judge which barred the company from notifying its users about the warrants before Facebook agreed to comply. Facebook responded, challenging the order. The company cited the First Amendment and the right to freedom of speech.

Officials say that have a right to notify the three users about the warrants seeking their communication and information. They claim the users should have a fair opportunity to object to such searches. The company released the following statement, We believe there are important First Amendment concerns with this case, including the governments refusal to let us notify three people of broad requests for their account information in connection with public events.

The underlying premise of the governments investigation is still not clear. However, its been speculated that it is affiliated with protesting attempts at the Donald Trump inauguration in which 200 people were taken into custody. The warrants are tied to potential felony charges, and neither the governments investigation nor its interest in Facebook user information was secret, according to the social media king.

Facebook receives thousands of requests from the government for user date annually and complies without question. However, in this particular case, the company cited it has decided to challenge the order because it believes in the protection of the First Amendment. Those who agree with Facebooks stance say that the gag order relies on outdated laws. In April, a local judge in Washington denied Facebooks request to remove it, according to court records, but Facebook cited this was unconstitutional and has appealed the original judgment. In a June 14th order, a three-judge panel of the DC Court of Appeals ruled that an unsealed notice about the case could be provided to any groups that Facebook deems necessary and briefs in support of Facebook were due by June 30th. The government can only insulate its actions from public scrutiny in this way in the rarest circumstances, which likely do not apply here, said attorney Andrew Crocker.

The Constitution can offer adequate protection only if the targets of seemingly overbroad warrants, such as those at issue here, know their rights are under threat, American Civil Liberties Union attorneys and Public Citizen Litigation Group wrote. Arthur Spitzer, legal director of the American Civil Liberties Union of the District of Columbia added that the scope of the warrants served on Facebook is like a warrant telling officers to seize all the papers and photographs in someones home, so prosecutors can peruse them at leisure looking for evidence. This violates the Fourth Amendment, which requires that warrants must particularly describ[e] the things to be seized a requirement that was designed to prohibit just such general warrants.

The District of Columbia Court of Appeals the highest court in Washington for local matters is scheduled to hear the case sometime in September.

Facebook challenges US gag order, claiming free speech

Facebook fights U.S. gag order that it says chills free speech

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Facebook Challenges Gag Order, Cited First Amendment Rights - Legal Reader (blog)

Crystal Sousa: Denham piles on the press during his telephone town hall – Modesto Bee

Crystal Sousa: Denham piles on the press during his telephone town hall
Modesto Bee
A constituent asked what he would do to dissuade the president from attacking journalists' First Amendment rights. Denham suggested that Trump, like himself, has a right to defend themselves from fake news. He went on to accuse our hometown paper of ...

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Crystal Sousa: Denham piles on the press during his telephone town hall - Modesto Bee

CNS Files Ninth Circuit Brief in Six-Year First Amendment Odyssey – Courthouse News Service

In a six-year First Amendment battle, Courthouse News has filed its appellate brief defending Federal Judge James Oteros finding that the court clerk in Venturamust let the press see new civil actions before they are processed.

Californias Judicial Council has tried in a number of ways to roll back traditional press access where journalists would review the new cases before they were docketed. That term is now subsumed into the word processing, the set of procedures applied to get a new case into a court computer system.

The diehard resistance by the council and clerk Michael Planet to pre-processing access contrasts with the prompt and efficient resolution of the same issue in a number of other federal jurisdictions.

Planet undervalues the First Amendment, the medias role in democracy, and the importance of access to civil records, says the 90-page brief filed by CNS lawyers late Friday before the long Fourth of July weekend.

In the preceding 74-page brief, clerk and council argued, It has always been Ventura Superior Courts policy to provide reasonable access to all civil records.

On the cases third trip to the Ninth Circuit Court of Appeals, the clerk relied on an argument made intermittently in the six years of litigation, claiming that the First Amendment right of access does not attach to civil filings until a judge makes a ruling, an event that generally comes months if not years after a new case is filed.

The same underlying issue press access before processing was quickly resolved last year in the Southern District of New York. Ruling from the bench, Judge Edgardo Ramos enjoined the state court clerk in Manhattan from withholding access while he processed the new cases.

I find that injunctive relief would serve the public interest, said Ramos from the bench. There is, of course, an important First Amendment interest in timely access.

The injunction was granted in December, about one month after CNS filed the action, and by the end of January, the Manhattan clerk had set up an electronic in-box that allowed journalists to see the new cases the moment they are filed. E-filing is required in many New York courts, including Manhattan.

Since the ruling by Ramos, eight county courts in and around New York City have set up in-boxes for the press, providing access along the same lines as federal courts.

In an earlier Texas case on the same issue, U.S. District Court Judge Melinda Harmon enjoined the Houston clerk who was withholding access while he docketed, scanned and put paper-filed complaints online.

In both cases, the litigation cost less than on tenth of the millions of dollars spent to establish prompt access in one small court in California.

In the California case, Judge Otero in the Central District ruled last year that the First Amendment attaches to new civil actions upon their receipt by the Ventura clerk. In his judgment, he wrote that the press has the right to see the new cases before they are processed, whether they are paper-filed or e-filed.

The clerk and council then appealed his ruling to the Ninth Circuit, where judges Kim Wardlaw, Mary Murguia and N. Randy Smith will hear the case.

At the same time, Otero declined a request to publish his ruling which ran 30, single-spaced pages and, in response to CNSs request for attorney fees as the prevailing party, cut the lodestar amount by 63 percent. That cut, reducing a $5 million cost to a roughly $2 million reimbursement, is the subject of a cross-appeal by CNS and explains the length of the brief.

Since then, Oteros writ has not extended very far, even within the Central District.

A small set of clerks have stonewalled the ruling, including Orange County Clerk David Yamasaki who continues to withhold access to newly filed complaints until after processing. In an action filed by CNS against Yamasaki, seeking to enforce the guts of Oteros ruling, Otero declined to take the case as related.

It was assigned to Judge Andrew Guilford in Santa Ana who tentatively ruled that it is OK to withhold the new cases until they are reviewed for confidentiality, at which time they are also processed.

As a result of that tentative, which the judge has signaled he will confirm, a new case filed in Orange County at the same time as the CNS brief was filed, late on Friday, would be considered provided to the press in a timely fashion, even if it is made available on Wednesday morning, five days later. By way of contrast,the Ninth Circuit brief was available for review upon receipt, late Friday afternoon, before what many are taking as a long weekend.

In fact, most cases filed in Orange County on Friday were withheld and will not be seen for five days. Likewise, all new cases filed on Monday in Orange County were withheld.

A few other clerks, in Santa Barbara and San Jose, for example, are also stonewalling Oteros ruling, and withholding new cases from the press while the clerks process them into their case management systems. San Jose is a paper court while Santa Barbara has put in place e-filing software by Tyler Technologies.

In courts outside California, Tyler which makes the popular Odyssey case management system provides the press with an electronic in-box, in other words access before processing.

Traditionally, reporters gathered at the end of the day in the clerks office to review the days new civil cases, a potent source of news, long before they were docketed. That was true in the Central District and the rest of the federal courts in California, as well as Los Angeles and Orange County superior courts, among many others in the state and across the nation.

That tradition has come under attack from within the Judicial Council and from its staff who wrote a definition into statewide e-filing rules that a clerk wishing to withhold access could use as justification. That rule was passed by the council over the objection of the L.A. Times and a good part of the rest of the press corps in California.

The most loyal defenders of the withholding practice have been in courts, including Orange County and Ventura, that were early adopters of the Court Case Management System, software pushed by the Judicial Council that was meant to usher in e-filing but wound up as a half-billion-dollar waste of public funds.

In their Ninth Circuit brief on behalf of the council and the clerk, Robert Naeve, Craig Stewart, Erica Reilley, Jaclyn Stahl with Jones Day, and Frederick Hayes with his own law offices, argued the First Amendment does not attach when a new civil case is filed.

Rather than impose upon state court clerks a constitutional stopwatch, which starts ticking the moment a complaint is received, this Court should hold that access to civil complaints should be considered timely so long as they are made available to the public at the time the parties see judicial resolution of the issues arising from the complaint e.g., a motion to dismiss, a summary judgment motion, or trial, they wrote.

In their Ninth Circuit brief on behalf of CNS, Roger Myers, Rachel Matteo-Boehm, Jonathan Fetterly and Leila Knox with Bryan Cave cited a long list of recent appellate opinions in support of Oteros finding that Complaints have historically been made available to the press and public soon after they are received by the court.

The clerk is also arguing on appeal that he does not know what timely access means, and so Oteros decision is too vague. But most weeks since the Oteros ruling, the clerk has provided access to every single new complaint on the day it was filed, suggesting he understands the import of the ruling and how to put it into effect.

The CNS brief also outlined a standard that provides some elasticity in the application of Oteros ruling: If complaints are not withheld pending processing and can be viewed during the hours they can be filed, the result is access soon after they are received by the court, which is timely. That will usually be the day of filing, but there may be instances where complaints are delayed without violating the injunction.

In their final paragraphs, the clerk and council argued, An ordinary person reading the injunction would not be able to determine what is meant by in a timely manner. Hence, the district courts injunction must be vacated for vagueness.

They concluded, The district courts order granting summary judgment in favor of CNS and entering a permanent injunction against Ventura Superior Court should be reversed.

In their contrary conclusion, the CNS lawyers wrote, As CNSs declarations demonstrate, there is a long history of courts making complaints and exhibits publicly available upon receipt.

But in California, a few clerks in courts that adopted the ill-fated Court Case Management System refuse to budge. Influential on and funded by the state Judicial Council, they seek to upturn history and logic by allowing clerks to treat complaints as private until after processing, judicial action, judgment, or forever if a case settles first.

Forced to spend a small fortune over six years and three appeals to right this public wrong at just one court, the brief wound up, CNS respectfully requests this Court affirm the merits order, so clerks cannot deny access until after processing.

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CNS Files Ninth Circuit Brief in Six-Year First Amendment Odyssey - Courthouse News Service