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Five years ago, the Florida Department of Agriculture turned its regulatory power on a small third-generation dairy farm in the Panhandles Calhoun County, population 14,462.

FIRST AMENDMENT: Mary Lou Wesselhoeft, owner of the Ocheesee Creamery, was told by state regulators that she must inject additives into her all-natural skim milk or call it imitation milk.

The Ocheesee Creamery, as its known, was caught being a little too honest.

Mary Lou Wesselhoeft, owner, was selling all-natural pasteurized skim milk whole milk with the cream skimmed off and labeling it exactly what it was: skim milk.

But in a strange twist with First Amendment implications, the state said Wesselhoeft was misrepresenting her product. After a decade without complaints or confusion, newly enforced regulations required artificially injected additives something Ocheese Creamery had never done andwasnt about to start doing.

As a result, the department issued an ultimatum: either stop selling skim milk or label it imitation milk.

Wesselhoeft, whose website header includes the Bible verse, The hills shall flow with milk, Joel 3:18, opted to stop selling her locally popular item rather than comply with a condition she believes is dishonest.

But not without a fight.

In March 2016, the U.S. District Court for the Northern District of Florida ruled in favor of the Department of Agriculture.

The First Amendments protection of free speech extends to commercial speech, the court said, adding that while Wesselhoefts label is literally true, the department has the authority to establish a standard of identity.

On Jan. 24, the Institute for Justice, a public interest law firm, argued her case before the U.S. Court of Appeals for the Eleventh Circuit Court in Jacksonville. The firm has represented Wesselhoeft since 2014.

The state has turned the dictionary on its head, managing attorney Justin Pearson told Watchdog.org.

The state admits that Ocheesee Creamery skim milk consists entirely of pure all-natural skim milk. But because it doesnt add any other ingredients, the state has ordered the dairy not call it what it is. That violates the First Amendment, Pearson said.

According to the department, skim milk can only legally bear the name skim milk in Florida if it contains the same amount of vitamin A as whole milk. If it doesnt, vitamin A must be artificially added.

That puts Wesselhoeft in a bind.

Ocheesee Creamerys milk is separated so the cream rises to the top. But because vitamin A is fat soluble, its largely removed when the cream is skimmed.

OCHEESEE CREAMERY: The Calhoun County dairy farm west of Tallahassee produces all-natural milk items from grass-fed cows.

The thing thats different about our creamery is that its pasteurized, not homogenized, and our milk goes in glass bottles and is all-natural, Wesselhoeft said in a video produced by the Institute for Justice.

Commercial milk is typically homogenized a mechanical process that breaks down fat globules from the cream and suspends them, along with vitamin A, throughout the milk.

The dairys all-natural products are produced from grazing grass-fed cows. Many of its customers frequent the small business precisely because its products dont contain additives.

Many older people enjoy our items because it reminds them of their growing-up days when milk in glass bottles was the norm,the dairys website says.

The three-employee farm also includes a storefront where guests can watch how the family operation bottles its milk.

According to the lawsuit, department regulators routinely tested and approved the farms skim milk prior to October 2012, when the state issued a stop-sale order and demanded that Wesselhoeft refrain from listing any nutrient or health claims on its labels.

But not because its unsafe.

The state doesnt dispute that the creamerys skim milk is safe to drink without the full amount of vitamin A, explained Pearson. The state also agrees that the creamerys skim milk is legal to sell without any additives, he said. It just wont allow them to call it skim milk.

TRADITION: The small third-generation farm has three employees, andincludes a storefront where guests can watch how milk is bottled.

In 2013, Wesselhoeft proposed alternative labels, including Pasteurized Skim Milk: No Vitamin A Added, Pasteurized Skim Milk: No Lost Vitamin A Replaced, and Pasteurized Skim Milk: Most Vitamin A Removed by Skimming Cream from Milk.

The suggestions were denied.

If we would have ignored the Department of Agriculture, they couldve come and pulled our permit and shut us down completely, and we could not have sold any of our products anywhere, Wesselhoeft said.

According to the lawsuit, in addition to canceling permits and issuing fines, selling pasteurized skim milk without complying with Floridas labeling laws could result in incarceration for the Creamerys owners.

The farm has managed to continue operating, but not without losing money. It sells dairy items containing cream, but since the left-over skim milk cannot be sold, itsdiscarded.

Every day we cant sell it, it hurts our livelihood and we lose customers. We cannot continue on. It hurts us in a big way, Wesselhoeft said.

The Agriculture Department refuses to back-off its labeling prohibition despite the lack of public safety concerns. Court documents show the states interest is in establishing a standard of identity and nutritional standards for milk for the purpose of interstate commerce.

Ocheesee Creamery sells its products exclusively within the state of Florida.

Pearson said that amicus briefs were filed by large farm organizations, including the International Dairy Foods Association, on behalf of the state governments position.

Its clear that giant international dairy farmers dont like the idea that small, authentic creameries could offer alternative choices. I dont think thats a coincidence, he told Watchdog.org.

The Eleventh Circuit is expected to decide the case before summer. The lawsuit doesnt seek monetary damages, only the ability to call the product skim milk.

We think the judges understood what we were saying, Pearson said.

For Wesselhoeft, the challenge is a simple matter of right and wrong. We should win this case because we want to tell the truth, she said.Someone has to stand up.

Read more here:
Small dairy farmer seeks First Amendment protection from state regulators - Watchdog.org

Anti-Trump protesters and the Denver Police Department may disagree about whether the First Amendment grants them the right to protest at airports.

According to a video posted to YouTube by protester Darren OConnor on Saturday, Commander Lopez of the Denver Police Department was having none of it, no First Amendment Right to express the outrage being felt across the country at the unilateral closing of our borders to people with Green Cards and families in America. The First Amendment requires a permit. Even carrying the constitution without a permit is illegal, according to Commander Lopez. Read that again. And again. And again.

During the protest, Denver Police Commander Tony Lopez told protestersthat they should put all the signs away that have anything to do with First Amendment expression, political message. Based on legal advice we are getting at this time, from the city attorney, whats being displayed, is a violation of airport rules and regulations.

As NBC News affiliate 9News pointed out, the Supreme Court has ruled before that airports are not traditional public forums, giving airport officials the ability to impose reasonable restrictions. This coincides with the position taken by Denver International Airport spokesman Heath Montgomery, who told 9News that we have to ensure that people who use this airport are safe and able to go about their business uninterrupted and thats going to remain our focus. According the airports rules and regulations, protesters need to submit a permit one week in advance, which didnt happen prior to Saturdays event.

Eventually a compromise was struck and the protesters were allowed to move to another part of the airport.

In the end, We The People won the day, proclaimed OConnor in the description under his YouTube video. Commander Lopez backed down, and as We The People stood in support of immigrants and the First Amendment, a federal judge stayed Trumps order. We the people won the day.

Read the original:
Denver Police say airport protesters aren't protected by First Amendment, need permit - Salon

WIAT 42

Police: Veteran's hanging Trump effigy protected by First Amendment WIAT 42 MacLean said Freedom of Speech under the First Amendment to the U.S. Constitution and under Article 1, Section 9, of the Indiana Constitution, permits and protects speech as long as it is not a call to imminent lawlessness. It is illegal to threaten ... and more »

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Police: Veteran's hanging Trump effigy protected by First Amendment - WIAT 42

An overview of the goals of reforming the Colorado Open Records Act. Nick Coltrain

Lauren Gustus is Executive Editor of the Coloradoan.(Photo: File photo)

About a year ago, a bill withFort Collins origins failed in the Colorado Legislature.

You might be thinking, well, thats nothing new. This session will see more than 700 bills introduced at the Capitol. A fraction of them will become law.

It's what happened after this specific bills failure that was unusual.

The Secretary of States Office committed to helping reframe the bill for 2017 so it worked better for those who made public records requests and those in receipt of them.

The idea: If a record is available in digital form, it should be given to a requestor in a native format, i.e., some sort of searchable digital format. Today the standard is that it be made available in printed form (and that could be somewhere far from where you live).

The prospect of open records modernization is understandably concerning to government employeesworking in an office that doesnt receive requests often or if your office isnt familiar with excel or other digital formats.

So the Secretary of State created a working group to determine how to create a piece of legislation that updated todays Colorado Open Records Act known as CORA, which hasnt been updated since 1996 without creating potential for unintentional release of data that is not public (such employees Social Security numbers, gender, etc).

I served on the 16-person working group as the representative for the Colorado Press Association, which started to discuss the issue in early summer and wrapped in December.

The result is Senate Bill 40, which will be heard in the Veterans and Military Affairs Committee on Feb. 6. I am headed down to Denver to testify in its support. If it passes out of committee, it will move to the Senate floor.

Some people might wonder if it is my place to speak in support of legislation at a time when we are discussing daily how to best offer balanced coverage for you.

Just as it is our responsibility to fight abuses of power and champion issues for those who do not have a voice, it is also our duty to work for improved transparency.

Supreme Court Justice Anthony M. Kennedy wrote that First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.

Timely stuff, even if his comments were made 15 years ago.

The update to CORA is a reasonable solution thats worked its way through a monthslong process with stakeholders from across the state and the political divide.

I am impressed by the open-minded approach taken by Colorado legislators on both sides of the aisle, as well as state agencies such as the Secretary of States Office, and how stakeholders with disparate missions brought to a table to make concessions.

With this piece of legislation, Colorado is demonstrating that it can be an exception to todays political rule in Washington, D.C.

This bills sponsors (Sens. John Kefalas and Dan Pabon) compromised. Just as important, they listened. Im hopeful the committee will do the same when it considers the legislation.

The bill would require the custodian of the public records to provide an accurate copy of the public records in a searchable format when requested. If public records are not stored as structured data but are stored in an electronic or digital form and are searchable in their native format, the custodian is required to provide a copy of the public records in a format that is searchable when requested.

Nothing in the bill requires a custodian to produce records in their native format. A searchable format is required.

http://leg.colorado.gov/content/committees

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Gustus: First Amendment matters; here's what I'm doing - The Coloradoan

Senate Judiciary Committee member Sen. Al Franken, D-Minn. questions Attorney General-designate, Sen. Jeff Sessions, R-Ala., on Capitol Hill in Washington, Jan. 10, 2017, during the committee's confirmation hearing for Sessions. Alex Brandon / AP

Now, Sessions' support of FADA is being called into question. In his list of

Sessions balked at the idea that FADA is "deceptively named," telling Franken: "The purpose of the legislation was to prohibit the federal government from taking discriminatory actions against any person based on their belief or action in accordance with a religious or moral conviction." Other supporters of the bill have similarly stressed the concept of federal government "discrimination," rather than addressing the bill's protection of those who engage in discrimination.

Franken wasn't happy with Sessions' answers to his questions about the bill.

"Contrary to Senator Sessions' response, federal law does not allow the government to discriminate against someone on the basis of a sincerely held religious belief," Franken told NBC News. "The First Amendment Defense Act would legalize discrimination, pure and simple."

Sen. Mike Lee's spokesperson, Conn Carroll, told NBC News that FADA "explicitly does not preempt state law, so it does not enable discrimination anywhere." That was a direct response to questioning about how FADA would apply in the 20-plus U.S. states that currently have laws protecting LGBTQ residents from discrimination. Would FADA only apply in half of the country?

The ACLU's Ian Thompson, a Legislation Representative specializing in LGBTQ policy, told NBC News the bill's text actually states the oppositeand would evenly apply nationwide.

"The notion that national law can only apply to some states boggles the mind. If FADA passed it would apply in every state," Thompson said. "At the very beginning of FADA, you will see that it clearly states 'notwithstanding any other provision of law.' That's essentially saying that it overrides any other law."

Besides, Thompson said, FADA it so sweeping in its reach that it would impact LGBTQ people everywhere, even if state laws did offer protection.

"If you went down to the Social Security office with your partner," Thompson said, "an employee would be empowered to say 'I can't help you because of my religion or morals regarding same-sex couples.' It would allow a federal contractor in NYC to discriminate despite the Obama executive order. It would allow commercial landlords to reject a same-sex couple or an unmarried couple."

Regardless of state-level or even local anti-discrimination ordinances, experts say FADA would apply to any entity that receives federal funding. Franken told NBC News that it would "sanction sweeping discrimination."

"A homeless shelter could turn away a married same-sex couple seeking a safe place to sleep," Franken explained. "A commercial landlord could refuse to rent to a single mom or a pregnant single woman, because the business doesn't believe in sex outside of marriage.This is a dangerous bill."

Ambiguous, confusing language "notwithstanding any other provision of law" and the use of the term "discrimination" is part of what makes the true intent of the First Amendment Defense Act so difficult to untangle. Interpretation of FADA's scope varies wildly, too, between its supporters and its opposition. That could be due to the changing drafts of the bill, which first appeared to allow religious and moral-based discrimination universally, and was later changed to exclude federal contractors, publicly traded companies and hospitals.

But even the version of the bill that excludes hospitals from the right to turn away LGBTQ patients or patients having sexual relations outside of heterosexual marriage would allow an individual employee to opt out, according to Sen. Lee's spokesperson.

"Pro-life doctors work at hospitals that provide abortion services all the time, but those hospitals don't force doctors to perform abortions," said Carroll, who told NBC News the newest draft would likely resemble the

The version of FADA that will be reintroduced to Congress this term has yet to be seen, and despite Carroll's assertion that FADA will probably exclude hospitals, the only version that was ever actually introduced to Congress did not mention exclusions at all leaving all businesses and institutions free to claim a moral objection to serving LGBTQ people or unmarried couples.

All versions of FADA so far entrust the Attorney General to press charges against any "independent establishment" that violates the law. That means that if the Equal Employment Opportunity Commission (EEOC) the federal agency tasked with enforcing civil rights protections in the workplace were to try and do its job, for example, Sessions could take the agency to court.

"It says to federal agencies like the EEOC that they can't step in and protect these people," Thompson said.

The legal scope of FADA isn't the only criticism it has faced. Clergy of all stripes, including Baptists, have spoken out against the law. In 2016, a group of clergy in Georgia held a press conference where they said FADA would allow adoption agencies to put bias ahead of children's best interests.

"I find it unacceptable at every level as a pastor, as a citizen, as a Baptist and as a father," said Trey Lyon, a pastor at Atlanta's Park Avenue Baptist Church, according to

Progressive Christians have been fighting similar laws, with one

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Continued here:
First Amendment Defense Act Looms Over Sessions' Confirmation Vote - NBCNews.com