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As we have noted several times before, American Family Radios Bryan Fischer holds an utterly incoherent view of the First Amendment that allows him to continually insist that it only applies to Congress except for all the times when he insists that it applies to all sorts of other government entities.

Amazingly, Fischers theory regarding the scope and meaning of the First Amendment grew even more incoherent when he said on his radio program yesterday that a failure by the Supreme Court to strike down a provision in a state constitution prohibiting the use of public funds to aid religious institutions would be a violation of the First Amendment.

Fischer was discussing the upcoming Trinity Lutheran Church v. Pauley case, which The Atlantic summarized thusly:

At first glance, Trinity Lutheran is about resurfacing childrens playgrounds. Missouris Scrap Tire Program offers state funds to nonprofit groups that replace playground surfaces with recycled rubber. The church applied to the program in 2012 to replace the gravel surface of its playground, but the state rejected its application, citing a clause in Missouris state constitution that bars the use of state funds directly or indirectly, in aid of any church, sect, or denomination of religion.

Trinity Lutheran Church argued that that provision violates the U.S. Constitutions First Amendment by discriminating against religious organizations. Missouri countered that because it does not favor or disfavor any church over another, it meets the Establishment Clauses standards.

In the past, Fischer has repeatedly stated that the First Amendment applies to Congress and Congress alone Since Congress is the only entity restrained by the First Amendment, Congress is the only entity that can violate it. He has also argued that states are allowed the freedom under the Founders Constitution to regulate religious expression anyway they choose.

Despite the fact that just last year, Fischer insisted that the First Amendment only applies to Congress and that states are free to regulate religious expression in any way they would like without any interference from the federal government, he is now bizarrely demanding that the federal government, via the Supreme Court, strike down this clause in the Missouri constitution on the grounds that it violates the First Amendment.

The First Amendment is addressed to Congress, Fischer said, and Congress has all legislative power, so this is essentially an amendment that applies to all of the federal government. The whole federal government is covered by the First Amendment. What is Congress not allowed to do, according to the First Amendment? It is flatly prohibited from doing what? From prohibiting the free exercise of religion. So what is the Supreme Court forbidden to do in the case of Trinity Lutheran Church vs Pauley? It is absolutely, totally, as an instrument of the federal government, it is forbidden by the Constitution to limit, to prohibit, to restrict the free exercise of religion in any way. What are they doing if they say to the school, Youre not eligible for any public help because you engage in religious expression? You cannot find a more direct and more egregious violation of the First Amendment than for the Supreme Court, an agency of the federal government, to prohibit their expression of religious liberty.

Not only is Fischer insisting that the First Amendment applies to entities beyond Congress, despite repeatedly asserting exactly the opposite in the past, he is now also declaring that the federal government must nullify a provision in a state constitution pertaining to religious expression despite having previously proclaimed that states are free to regulate religious expression in any way they would like without any interference from the federal government.

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Bryan Fischer's Incoherent Theory Of The First Amendment Grows ... - Right Wing Watch

ROGER WICKER

The First Amendment to our Constitution is a powerful expression of our right to the free exercise of religion. Americans can practice their faith without fear of persecution a freedom that is not found in all parts of the world.

For Christians in the United States, the prevalence of religious persecution worldwide is especially heartbreaking as we approach Easter Sunday. We are reminded of the suicide bomber who targeted Christians on Easter Sunday last year in Pakistan, killing more than 70 and injuring hundreds. Sadly, this violence is not isolated. Pakistan ranks fourth on this years World Watch List created by the nonprofit group Open Doors USA. The list names 50 countries that have extreme, very high and high persecution of Christians. North Korea ranked first.

I currently serve as chairman of the U.S. Helsinki Commission, an agency comprised of members of Congress and federal officials to promote security and human rights in 57 countries in North America, Europe and Eurasia. The persecution of Christians and religious minorities remains a significant concern for the commission. In Syria, the Islamic State has waged a genocide against Christians, forcing thousands from their homes and destroying religious sites. In Russia, the governments recent attempt to ban Jehovahs Witnesses from practicing their faith is yet another affront to religious freedom in a country known for trampling human rights. Russias actions refute the international agreement that the U.S. Helsinki Commission seeks to uphold.

I have consistently supported legislative measures to protect Americans constitutional freedoms, including the exercise of religion. Political agendas should not encroach these rights. During the Obama administration, for example, I championed legislation that would allow military chaplains to refrain from performing marriage ceremonies if it would violate their conscience to do so. The religious expression of our military men and women is deserving of respect.

The same respect should be afforded to all Americans by our government agencies. I am encouraged by recent reports that President Trump is considering an executive order that would require federal agencies to protect the freedom of religion in their actions and policies. Earlier this month, I sent a letter with 17 other senators to President Trump expressing our support for this executive action and the need for federal agencies to follow the rule of law.

The letter reminds the President of attempts by the Obama administration to infringe on the rights of faith-based charities like the Little Sisters of the Poor. Obamacare forced the group either to pay a fine or offer services that they opposed for deeply held religious reasons. A Supreme Court ruling reaffirmed the religious liberty of the Little Sisters, just as it did for the owners of Hobby Lobby, who also raised religious objections to the health-care law.

Our founding documents built a foundation for religious liberty that is admired around the world. It is up to us to ensure that this foundation does not crumble.

Roger Wicker is a U.S. Senator from Mississippi. Contact him at 330 W. Jefferson St., Tupelo, MS 38803 or call (662) 844-5010.

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ROGER WICKER: Celebrate First Amendment religious freedoms ... - Northeast Mississippi Daily Journal

On March 29, 2017, in a unanimous ruling, the US Supreme Court ruled that a New York statute, which prohibits identifying a surcharge to customers for credit card payments, regulates speech and is therefore subject to heightened scrutiny. Expressions Hair Design v. Schneiderman, No. 15-1391, 581 US __ (Mar. 29, 2017). The Court remanded the case to the US Court of Appeals for the Second Circuit to determine whether New Yorks statute violates the First Amendment. Although not a tax case, the decision likely implicates state and local tax laws that either prohibit, or require, taxpayers to identify taxes and fees in customer invoices.

Background. New York General Business Law 518 prohibits a seller from imposing a surcharge related to credit card fees. While the statute prohibits a retailer from advertising or separately stating a credit card surcharge, it does prohibit the retailer from charging a different price for credit card and cash sales.

Five New York businesses challenged the constitutionality of the statute, alleging it violated the First Amendment of the United States Constitution by regulating the businesss communication of prices, and by being unconstitutionally vague. The US District Court for the Southern District of New York ruled for the petitioners, finding that the statute regulates speech, not conduct, and is therefore subject to heightened scrutiny. In striking down the New York as violating the First Amendment, the District Court for the Southern District of New York applied a strict scrutiny standard.

On appeal, the Second Circuit vacated the District Court decision, abstaining from the First Amendment issue altogether, by concluding that the statute regulates conduct and not speech. The Supreme Court disagreed and remanded the case back to the Second Circuit for consideration of the First Amendment issue. In its opinion, Chief Justice Roberts wrote: The law tells merchants nothing about the amount they are allowed to collect from a cash or credit card payer. Sellers are free to charge $10 for cash and $9.70, $10, $10.30, or any other amount for credit. What the law does regulate is how sellers may communicate their prices. Expressions Hair Design, at *9.

Eversheds Sutherland Observation The Supreme Courts ruling clarifies that laws regulating how a seller communicates its prices are subject to heightened constitutional scrutiny standard, making it more likely that these laws will not pass constitutional muster.

Background on First Amendment Scrutiny. To apply heightened scrutiny under the First Amendment, a law must regulate speech and not conduct. United States v. OBrien, 391 US 367 (1968). In Expressions Hair Design, the Supreme Court found that simply because a statute regulates conduct does not mean it has no impact on speech. The decision signifies a shift towards more stringent analysis of statutes regulating commercial speech under the guise of regulating conduct. The Supreme Court concluded that regulating the relationship between a sticker price and the price charged means the statute is more than a pricing regulationthe communication of prices constitutes speech. Expressions Hair Design, at *8, n.2, 9.

Tax Statutes and the First Amendment. Although the Expressions case dealt with a surcharge, its reasoning is applicable to state and local tax statutes that require or restrict a taxpayers ability to separately identify taxes and fees on customer invoices. The Expressions ruling signifies that state and local statutes that bar truthful and non-deceptive speech will be subject to heightened scrutiny.

Examples of Challenges to Tax Statues Regulating Speech

In BellSouth v. Farris, the US Court of Appeals for the Sixth Circuit held that Kentuckys telecommunications services tax, which banned providers from collecting the tax directly from consumers and separately stating the tax, was unconstitutional under the First Amendment. BellSouth Telecommns., Inc. v. Farris, 542 F.3d 499 (6th Cir. 2008). The Sixth Circuit concluded that Kentuckys ban did not prohibit the pass through of the tax, but only the telecommunications providers truthful line item stating the tax was charged. Since the speech regulated was truthful and not misleading, the court held that the statute failed heightened scrutiny.

Eversheds Sutherland Observation Following Bellsouth, taxpayers in other states have obtained rulings allowing them to pass through the economic impact of taxes. Taxpayers have also obtained rulings that statutes requiring taxpayers to separately state certain taxes are not required to do so, in certain situations.

Other courts, however, have upheld limited restrictions on taxpayers ability to separately identify taxes and fees. For example, the Washington Supreme Court concluded that businesses may not add the Washington Business & Occupation (B&O) tax as a separate charge to its sales prices, regardless of any prior disclosure to customers. Peck v. AT&T Mobility et al., 375 P.3d 304 (2012). But see Nelson v. Appleway Chevrolet Inc. 157 P.3d 847 (Wash. 2007) (stating that sellers were prohibited from passing through B&O charges, unless they were specifically included in the negotiated final price of the item sold).

Unlike Washington, Texas has allowed surcharging the Texas Franchise Tax if certain conditions are met. Tex. Policy Letter Ruling No. 201008847L (Aug. 6, 2010). Similarly, in Mosser Const., Inc. v. City of Toledo, the Ohio Court of Appeals concluded that the Ohio Commercial Activity Tax does not prohibit a contractor from including the cost of tax in the prices it charges for its services. 2007 Ohio 4910 (Ohio App. 2007).

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US Supreme Court's Ruling Bolsters Taxpayers' First Amendment Right To Pass Through Fees (and Taxes) - Lexology (registration)

Media Matters for America (blog)

NRA Readies Next Attack Against The First Amendment Media Matters for America (blog) He then played a preview of a message featuring NRA's CEO Wayne LaPierre in which LaPierre claimed the media has weaponized the First Amendment against the Second, and that America would have fallen long ago had people placed their trust in the ...

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NRA Readies Next Attack Against The First Amendment - Media Matters for America (blog)

Photo courtesy the MTHS Hawkeye

For the fourth year in a row, the Mountlake Terrace High Schools student newspaper The Hawkeye has won the First Amendment Press Freedom Award from the Journalism Education Association (JEA) and National Scholastic Press Association (NSPA). The paper was given the award during an opening ceremony at a JEA/NSPA conference on Thursday night in Seattle.

The award recognizes free and responsible student media that thrive at the school. While members of the Hawkeye, it is also an accomplishment for the district and school administrators. Board Member Ann McMurray was also in attendance Thursday night to accept the award.

Its an award that is earned by having a community that believes in and values the principles of the First Amendment, a school administration that values and protects students rights, and thriving student media where students are in full control of editorial decisions, Hawkeye teacher adviser Vince DeMiero said. That starts at the community level, so this is as much an Edmonds School District award as it is an MTHS award or a Hawkeye award.

The award was given to ten other schools from across the country.

(I am) incredibly humbled, but also terribly sad that everypublic school in America isnt a First Amendment Press Freedom Award winner, DeMiero said.

Schools compete for the title by answering questionnaires submitted by an adviser and at least one editor. Publications that advanced to the next level were then asked to provide responses from the principal and all media advisers and student editors, indicating their support of the First Amendment. In addition, semifinalists submitted their printed policies.

Those who were selected showed a strong commitment to the First Amendment and student media.

Mountlake Terrace High School has won the award several times, and was among the first to win the award in 2000.

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MTHS Hawkeye wins First Amendment Press Freedom Award for fourth year in a row - MLT News