Mediaboss Marketing

Most speech is constitutional, even if it hurts somebodys feelings; or they disagree. But all speech is not permitted.

Paul G. Summers| Guest Columnist

Tennessee Voices: A conversation with Joni Bryan

917 Society Founder Joni Bryan spoke with Tennessean Opinion Editor David Plazas.

Nashville Tennessean

Editor's note:This is a regular feature on issues related to the Constitution and civicswritten by Paul G. Summers,retired judge and state attorney general.

The U.S. Constitution is the supreme law of America. Amendments are part of the Constitution. The first 10 amendments, or Bill of Rights, were submitted to the state legislatures in September 1789. The Bill of Rights was ratified in December 1791.

Our Constitution provides for three separate branches of government: legislative, executive and judicial. The first two are political; the judiciary is not. Judges must be independent, follow the rule of law, and act as checks and balances on abuse of power by other branches.

The Supreme Court ultimately decides whether a law or activity of any of the three branches of government comports with the Constitution. The independence of the third branch is the crown jewel of our democratic republic.

Amendment I. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The First Amendment prohibits any governmental interference regarding freedoms of religion; speech; the press; peaceful assembly; and ability to petition our government.

It prohibits any laws that create a national religion or hinders the free exercise of religion, abridge freedom of speech or of the press (media publication). This amendment prohibits any law that interferes with people who peaceably assemble or petition our government over issues or grievances.

Hear more Tennessee Voices: Get the weekly opinion newsletter for insightful and thought provoking columns.

The First Amendment has been interpreted by the Supreme Court as applicable to the federal government and the states, including political subdivisions, pursuant to the Due Process provision of the Fourteenth Amendment.

The First Amendment has limits - particularly if another persons rights might be violated. Although the amendment separates church from the state, there are limits. For example, someone could not injure or harm another even if they claimed such injury was part of my religion.

Likewise, bus transportation for religious schools generally does not violate the Establishment Clause of the First Amendment.

Most speech is constitutional, even if it hurts somebodys feelings; or they disagree. But all speech is not permitted. For example, laws prohibiting actual threats to public officials are forbidden, as in a threat to a federal judge.

Likewise, some pornographic laws are constitutional. Some are not. Finally, it is obvious that one can peaceably assemble or petition the government, but one cannot do it violently. One must use common sense and discretion.

Sign up for Latino Tennessee Voices newsletter:Read compelling stories for and with the Latino community in Tennessee.

Sign up for Black Tennessee Voices newsletter:Read compelling columns by Black writers from across Tennessee.

We live in a free society and make independent decisions, so long as they do not violate the inherent freedoms of others.

In case of doubt or argument, our Supreme Court makes the final decision.

Congress and the President decide on policies and the laws, and the Court decides on constitutionality.

Our Founding Fathers were not only smart, but clairvoyant.

We continue with the Second Amendment in the next article.

Please study your Constitution.

Paul G. Summers, lawyer, is a former appellate and senior judge; district attorney general; and the Attorney General of Tennessee. Raised in Fayette County, Judge Summers resides in Holladay and Nashville.

Originally posted here:
What are the five freedoms in the First Amendment? | Opinion - Tennessean

Religion has permeated human life for thousands of years and archeological evidence exists of religious practices associated with the earliest humans. After the establishment of more organized societies, religion commonly became integrated with government.

A strong connection existed between government and religion in Roman society. In the European Middle Ages, the early Christian church dominated medieval life while the Spanish Inquisition demonstrated a religion-infused government that used torture and execution to eradicate opposition.

Eventually, in Europe, schisms arose between the Catholic Church and emerging Protestants, leading to the Thirty Years War, violence in multiple European countries between religious factions, in England, a years of civil wars that erupted in 1642. Violence was commonly used across centuries to force change from one religion inseparable from government to another religion also inseparable from government.

Efforts to establish and maintain one dominant religion were shattered in 1791 when the Bill of Rights amendments were ratified. The First Amendment states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The 1791 ratification of the Bill of Rights created a precedent for separating religion from control of the government, as was common in Europe. But now there are those who want to establish religion in American as a partner of government.

In the context of history, this constitutional text is extraordinary. One of our nations founders, James Madison, wrote in 1822 about the reasons behind the First Amendment:

It was the belief of all sects at one time that the establishment of Religion by law, was right & necessary; that the true religion ought to be established in exclusion of every other; And that the only question to be decided was which was the true religion. . . . We are teaching the world the great truth that Govts. do better without Kings & Nobles than with them. The merit will be doubled by the other lesson that Religion flourishes in greater purity, without than with the aid of Gov.

The First Amendments momentous impact is defined by words on the Great Seal of the United States featured on our dollar bills: Novus Ordo Seclorum (A New Order of the Ages).

Unfortunately, there are Americans who choose to ignore the First Amendment. What was once a modest desire by some evangelicals to increase their religions presence has molted into a determined effort to establish religion in America as a partner of government and preferably integrated with government. Their intent to establish a religious kingdom of this world apparently arose because of their fear that the Christianity they preached more than practiced was under attack.

Part of this modern movement to establish an American Religion includes masking it in a blanket of patriotism. This effort is a calculated tactic to disguise violating the First Amendment. The zealots who advance religious patriotism, apparently with weak faith in their religion but strong fear for their religions future, want governments to protect their religion. They seek tax-paid help for their church schools and legislative statutes and court decisions designed to impose their beliefs on the private conduct of life.

Those who engage in religious patriotism, sometimes labeled Christian Nationalists, must believe that America was founded for them and intended for them. Evidently, they believe they are being robbed of that America. They fear tidal changes swirling at their feet and obviously fear that what they consider truth will be overcome by waves of different beliefs. Like many throughout history, they fear changes that time always brings.

Americans are having to adjust to an increasingly non-religious country. Some, unable to adapt quickly, react with anger against those who have different religions, or no religion, or different versions of their religion. They seek support from cynical politicians who promise to help defeat constantly advancing tides of change and who declare that they are tired of separating church and state. Like little children who build sandcastles on a beach at low tide, they are destined for bitter disappointment. The wheels of history do not roll in reverse.

Americans who endeavor to establish a government sanctioned religion would react strongly if Islamic Sharia law was imposed on them. The Afghan Taliban, with its hostility to all other religions but its version of Islam, its exclusion of women from most of Afghan society, and its brutal efforts to dominate Afghanistan using religious law imposed on all, is a modern example of government permeated by religion with insistent belief that it has the one true faith.

Current Iranian society has a Guardian Council of religious elders who vet candidates for office, impose religious rules over dress and conduct, and hold supreme authority over Iranian life. The Iranian Guardians believe they have the true faith. Like the Afghan Taliban and the Iranian Guardians, Christian Nationalists are not shy about proclaiming We know the truth. They are akin to an American Taliban.

The Volunteer State hosts efforts to establish an American religion. Some Tennessee churches label themselves as Patriot churches while others engage in more subtle efforts to gain an advantage for their religion. The current Tennessee legislature enacts legislation with an overt religious component to placate Tennesseans who want guardians for private conduct.

Those who wisely authored the First Amendment helped create a new form of government. The rights enshrined in that Amendment allow each religion to compete in the marketplace of ideas. The role of government is to ensure a level field for all to compete fairly. In the search for truth, some creeds bear good fruit while the harvest sought by others rots in the fields. As was said about two thousand years ago, By their fruits you shall know them.

Follow this link:
Blurred vision: The First Amendment and the American Taliban ... - Tennessee Lookout

William Brewer, Sarah Rogers & Noah Peters of Brewer Attorneys & Counselors and I filed a petition earlier this month asking the Supreme Court to review the Second Circuit decision in NRA v. Vullo; I think many of our readers will find it interesting (my apologies for the delay in passing it along).

I generally tend to agree with the NRA's ideological views, to a considerable extent, but I would have been glad to be engaged to argue a similar case on behalf of groups I disagreed with as well; it's a pretty important First Amendment question that can affect groups with all sorts of views. (Note that the ACLU filed an amicus brief on NRA's side in the District Court.) Here's our Introduction:

The Second Circuit's opinion below gives state officials free rein to financially blacklist their political opponentsfrom gun-rights groups, to abortion-rights groups, to environmentalist groups, and beyond. It lets state officials "threaten[ ] regulated institutions with costly investigations, increased regulatory scrutiny and penalties should they fail to discontinue their arrangements with" a controversial speaker, on the ground that disfavored political speech poses a regulable "reputational risk."

It also permits selective investigations and penalties targeting business arrangements with disfavored speakers, even where the regulator premises its hostility explicitly on an entity's political speech and treats leniently, or exempts, identical transactions with customers who lack controversial views. In sum, it lets government officials, acting with undisguised political animus, transmute "general backlash" against controversial advocacy into a justification for crackdowns on advocates (and firms who serve them), eviscerating free speech rights.

Reaching this result, the Second Circuit disregards basic pleading standards and undermines fundamental First Amendment freedoms. It also departs from this Court's precedent in Bantam Books, Inc. v. Sullivan and from the Seventh Circuit's precedent in Backpage.com, LLC v. Dart.

This case arises from a series of actionsincluding press releases, official regulatory guidance, and contemporaneous investigations and penaltiesissued by or on behalf of New York's powerful Department of Financial Services ("DFS") against financial institutions doing business with the NRA. Among other things, the Complaint states that Superintendent Maria Vullo: (1) warned regulated institutions that doing business with Second Amendment advocacy groups posed "reputational risk" of concern to DFS; (2) secretly offered leniency to insurers for unrelated infractions if they dropped the NRA; and (3) extracted highly-publicized and over-reaching consent orders, and multi-million dollar penalties, from firms that formerly served the NRA. Citing private telephone calls, internal insurer documents, and statements by an anonymous banking executive to industry press, the Complaint alleges that numerous financial institutions perceived Vullo's actions as threatening and, therefore, ceased business arrangements with the NRA or refused new ones.

The NRA brought First Amendment claims against Vullo and Governor Andrew Cuomo in their official and individual capacities. The individual-capacity claimsagainst Vullo, which were the subject of the Second Circuit's decision, withstood two motions to dismiss. But when Vullo appealed the District Court's refusal to grant her qualified immunity at the pleading stage, the Second Circuit held that the NRA's allegations fail to state a First Amendment claim at all.

In effect, the Second Circuit holds that a government official must explicitly threaten adverse consequences for disfavored speechand must do so in the absence of any contemporaneous assertion of a regulatory interestfor a First Amendment retaliation claim to arise. The Second Circuit's opinion thereby creates a circuit split with the Seventh Circuit's decision in Backpage.com, which held that a government official violated the First Amendment in circumstances closely comparable to these.

In addition, the Second Circuit refuses to accept the Complaint's allegation that Vullo clearly and unambiguously threatened insurers in private meetings, and selectively parses Vullo's official communications to disregard key passages and deny NRA the favorable inferences to which it is entitled on a motion to dismiss. The Second Circuit's decision thus defies this Court's command that, in evaluating qualified immunity, "courts must take care not to define a case's 'context' in a manner that imports genuinely disputed factual propositions."

The Second Circuit denudes Vullo's regulatory guidance of the "context" that made it ominous, while importing favorable "context" to frame Vullo's contemporaneous, selective targeting of NRA business associates as benign. "The 'context' here," the Circuit opines, "was an investigation, commenced months before the meetings, that was triggered by a referral from the DA's Office." The Circuit ignores boasts by Vullo's boss, Governor Cuomo, that her regulatory actions were "forcing the NRA into financial jeopardy." And the Second Circuit's suggestion that Vullo had non-retaliatory motives for investigating the insurance policies at issue is rebutted by the facts pleaded in the Complaint.

The Second Circuit goes on to suggest that even if Vullo did make threats, such threats were justified by the "general backlash" against the NRA "and businesses associated with them" which "was intense after the Parkland shooting." Indeed, this backlash "continues today," with many people "speaking out" against the NRA's gun rights advocacy. Such "backlash" against a speaker's viewpoint, the Second Circuit opines, "likely" has financial consequences that would justify financial blacklisting of that speaker for its controversial advocacy.

In support, the Second Circuit cites a "diversity, equity, and inclusion" consultant who charges companies for "consulting packages" to implement "corporate social responsibility" programs, as well as a "survey" commissioned by a marketing company that "strives to insert the brand's social mission and innovations into mainstream conversations through traditional and social media." The reliance on such sources underscores the unsoundness of the opinion below.

This Court has not hesitated to summarily overturn circuit court decisions, like the Second Circuit's, that disregard the applicable pleading standard in determining qualified immunity. Here, the Second Circuit makes the same error as the lower courts in Lombardo v. City of St. Louis, Missouri, 141 S. Ct. 2239 (2021) (per curiam), Sause v. Bauer, 138 S. Ct. 2561 (2018) (per curiam), and Tolan v. Cotton, 572 U.S. 650 (2014) (per curiam). In all three, this Court summarily reversed because the circuit courts refused to accept well-pleaded facts and draw reasonable inferences in favor of the non-moving party in determining qualified immunity.

The public importance of this case cannot be overstated. A regulatory regimeeven a facially content-neutral onethat "inhibit[s] protected freedoms of expression and association" violates the First Amendment. See NAACP v. Button, 371 U.S. 415, 437-38 (1963); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460-62 (1958). An overt campaign by state officials to wield regulatory power against a disfavored civil rights organizationhere the NRAprecisely because of its disfavored speech at least as clearly merits this Court's attention and reversal.

Reversal is urgent because the Second Circuit's opinion threatens basic First Amendment rights at a time when the First Amendment is under widespread attack. As the American Civil Liberties Union ("ACLU") has warned, "If the NRA's allegations were deemed insufficient to survive the motion to dismiss, it would set a dangerous precedent for advocacy groups across the political spectrum."

Go here to read the rest:
Cert. Petition on the First Amendment and Coercive Government ... - Reason

American journalists are protected from defamation claims by public officials under the standard set by a unanimous Supreme Court in New York Times Company v. Sullivan. Republican leaders like Gov. Ron DeSantis of Florida now want to abridge that protection.

To prevail in a libel case, the court held in 1964, a public official must prove actual malice that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false.

Surprisingly, the Sullivan case was not about Times journalism.

It concerned a full-page advertisement on March 29, 1960, seeking money for the legal defense of the Rev. Dr. Martin Luther King Jr. and the civil rights movement. A tear sheet is displayed in the Museum at The Times.

Among other things, the ad charged that historically Black Alabama State University in Montgomery (then called Alabama State College) had been ringed by truckloads of police armed with shotguns and tear-gas.

L.B. Sullivan, the police commissioner in Montgomery, sued The Times for libel. Though he was not named in the ad, Mr. Sullivan said police conduct would be imputed to him. By accepting the ad, he said, The Times had published statements it would have known to be false from its own clipping files. For instance, the police had not ringed the college campus.

On the stand, the manager of advertising acceptability for The Times, D. Vincent Redding (1910-70), said he had not questioned the accuracy of the ad, as it had been endorsed by people with reputations for truthfulness and trustworthiness, like Eleanor Roosevelt.

In 1962, the Alabama Supreme Court upheld a $500,000 judgment against The Times. That decision was reversed by the U.S. Supreme Court on March 9, 1964, in an opinion by Justice William J. Brennan Jr.

The presence of newspaper articles in the files does not, of course, establish that the Times knew the advertisement was false, Justice Brennan wrote. The test of actual malice, he said, would be the state of mind of the employees having responsibility for the publication of the advertisement.

David E. McCraw, the deputy general counsel of the Times Company, said in an email on Monday that this principle is a key part of the defenses by Fox News against a defamation lawsuit brought by Dominion Voting Systems. Fox is charged with having broadcast statements about voting fraud in the 2020 presidential election that it knew to be false.

View original post here:
The Ad in the First Amendment - The New York Times

A fired Cleveland State University professor has filed a civil lawsuit against the university in federal court, arguing his First Amendment rights were violated.

Former College of Business professor Bryan Pesta was stripped of his tenure and fired last year after the university found he had committed serious violations of our policies governing academic research, CSU said in a statement this week.

Pesta was also found by the National Institutes of Health to have misused its data and was banned from its use for three years in what CSU alleged was the most serious and longest such ban in NIH history. Pesta used that data in a controversial research report that suggested Black people are genetically predisposed to be less intelligent than white people, part of a larger body of scholarship Pesta had authored on the topic of genetics, race and inheritance that, as the Chronicle of Higher Education reports, flew under the radar until recently.

However, Pesta in the suit filed in the U.S. District Court for the Northern District of Ohio last week alleged he was being censored because his research challenges those of powerful government policies.

Pesta alleged that his opponents a) identified a conclusion of Dr. Pestas work which happens to be at variance with government policy and is interdicted by powerful taboos; and b) instead of squarely disputing the truth or falsity of the conclusion at variance with government policies, accused Dr. Pesta of ethical violations as a means of silencing Dr. Pesta without having to refute his conclusions, the lawsuit reads.

CSU in a statement said it wasnt engaging in censorship in Pestas case.

We strongly believe our faculty are entitled to full freedom in their research, but they must adhere to the highest standards of honesty, integrity and professional ethics, the spokesperson wrote. Anytime those standards are violated, we will take appropriate action.

The scientific consensus is that there is little evidence for genetics determining IQ differences between racial groups, several researchers reported in a 2017 Vox article, partly because of how difficult it is to disentangle environmental factors that people experience after being born, factors like discrimination and poverty. Plus, they wrote, there are challenges disentangling the concept of a person's race - which many scientists argue is a social construct rather than a biological one - from their genetic ancestry.

Pesta alleged in the lawsuit that a group of academics and students put pressure on university officials to get him fired due to his unpopular and racist views, a charge which he denies.

The lawsuit seeks his reinstatement, with pay, at CSU, along with $50,000 in damages and a declaration that the hereditarian hypothesis in the long-standing racial gap in IQ is worthy of study, but is presently under assault for reasons wholly removed from valid scientific criteria, along with a statement that those studying the issue are entitled to academic freedom.

See the original post here:
Fired Cleveland State professor files suit alleging violation of his ... - ideastream