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Attorney General Paxton has joined an Alabama-led multistate amicus brief in the Atlanta-based U.S. Court of Appeals for the Eleventh Circuit, fighting to defend the First Amendment rights of a Jewish synagogue facing unconstitutional discrimination.

The case revolves around the Hillsborough Area Regional Transit Authority (HART), a publicly-funded transit system, that refused to allow Young Israel of Tampa to advertise its Chanukah on Ice program pursuant to a policy banning religious advertising. After the district court enjoined its policy, HART appealed to the Eleventh Circuit.

As the courts have ruled on several occasions, public entities violate the First Amendment when they engage in viewpoint discrimination, regulating speech based upon disagreement with the point of view being expressed. That is precisely what HART did here.

HART further departed from the First Amendment by lumping in all religious advertising with more traditional categories of prohibited advertising, such as ads containing graphic violence or nudity. It flies in the face of the First Amendment, and the American tradition of respecting religious freedom, for HART to draw a moral equivalency drawn between a synagogue hosting a community event commemorating a religious holiday and pornographic or violent advertising

As the brief states: [T]he policy is at odds with the history and tradition of the First Amendment, sends the perverse message that religious discourse is like the other subjects HART bans (alcohol, pornography, discriminatory messages, and the like), conflicts with modern First Amendment jurisprudence forbidding viewpoint discrimination, and flunks even HARTs preferred test for content-neutral speech restrictions.

To read the full brief, click here.

View post:
Paxton Works to Safeguard First Amendment Protections for Religious Group Facing Illegal Discrimination - Texas Attorney General (.gov)

Professors at public universities have no right to freedom of speech when they teach, lawyers for the State of Florida argued in a court filing last week. Over the past few days, many academics have expressed outrage, describing Floridas stance as a direct, troubling attack on academic freedom. Some have even called it fascist.

But theres genuine uncertainty over the extent to which the state can dictate what state-college instructors teach, two law professors told The Chronicle.

As college instructors themselves, they obviously had a stance. Yet they admitted that existing law and precedent isnt entirely clear. It remains more of an open question than those of us who are academics would like it to be, said Frederick Schauer, a First Amendment scholar at the University of Virginias School of Law.

The court filing was in defense of the states Individual Freedom Act, commonly known as the Stop WOKE Act, which bars instructors at public institutions from teaching certain ideas related to race, racism, and sex, and which at least two groups of students and professors have sued over.

The curriculum used in state universities and the in-class instruction offered by state employees count as the Florida governments own speech, the lawyers wrote. Therefore: The First Amendment simply has no application in this context.

Its a powerful argument if you can get it accepted, said Timothy Zick, a professor who teaches about the First Amendment at the William & Mary Law School. The First Amendment just drops out of the picture.

But will the argument be accepted?

Floridas filing discusses a 2006 Supreme Court decision in Garcetti v. Ceballos. In that case, the court decided 5 to 4 that state employees didnt have First Amendment rights while they were doing their jobs. (Schauer gave the hypothetical example of an anchor at a public TV station needing to read their script, as part of their job.) But Supreme Court justices at the time deliberately left unanswered the question of whether that principle extended to college classrooms.

We need not ... decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching, the since-retired Justice Anthony M. Kennedy wrote in the opinion of the court.

Since then, lower courts have often decided that Garcetti doesnt apply to college-level scholarship and teaching. The courts have recognized the virtues of relatively unconstrained academic inquiry, at least at the university level, Schauer said.

In addition, two midcentury Supreme Court cases, decided at a time when U.S. institutions were panicking about communism and trying to make professors sign anti-communist statements, linked the idea of academic freedom to professors First Amendment rights, Zick said.

But these cases stop short of establishing that something like Garcetti definitely wouldnt apply to college teaching, Schauer said. The courts didnt say whether there was anything special about professors that gave them protections that other state employees might not have, he said.

Plus, there are clearly some limits to the job. A professor assigned to teach constitutional law cant simply decide to talk about astrology instead and claim it was a free-speech issue, which Schauer offered as another example.

Schauer and Zick both sounded warnings about what public higher education might look like if Florida prevails. Both more liberal and more conservative states might flex their abilities to set curriculum mandates. A state could even require professors to say things they dont believe, Zick said.

All of this would make us far worse off, he said, in terms of what the universitys principal mission is, which is to develop knowledge and distribute it and to teach and to learn.

Link:
It's Not Clear Whether Public-College Professors Have First Amendment Rights When They're Teaching - The Chronicle of Higher Education

from the what-could-it-possibly-be dept

Right after the 5th Circuits ruling on Texas HB 20 law on content moderation came out, I wrote up a long post going through the many, many oddities (and just flat out mistakes) of the ruling.

Since then, one thing that was bothering about this ruling was that it wasnt just wrong on the law, wrong on the relevant precedents, and wrong on the 1st Amendment but it literally went against the last few decades of how conservative Federalist Society judges have been expanding the 1st Amendment to cover more and more activity by organizations (which, contrary to popular opinion, I actually think has been mostly correct).

The Daily Beast asked me to write up an analysis of the 5th Circuit ruling, and one thing I focused on was just how blatantly basically the entire Republican ecosystem completely reversed on this issue over the last year and a half since Donald Trump got banned from Twitter. I mean, at a very direct level, Republicans insisted (falsely) that net neutrality was an attack on the free speech rights of internet providers, and that the very limited net neutrality rules that the FCC put in place were the government takeover of the internet. Yet they suddenly have no problem applying much more aggressive and 1st Amendment violative rules to edge providers that are nothing like internet service providers.

And while I kept hearing people say that the Dobbs ruling showed that the Supreme Court will now ignore precedent to get to the results it wants, theres something different about the 5th Circuits ruling in the NetChoice case:

The cynical will point to things like the Supreme Courts decision inDobbs(which overturnedRoe v. Wade) and note that weve entered an era of Calvinball jurisprudencein which precedents are no longer an impediment to whatever endgame Federalist Society judges want. (The beloved comic stripCalvin and Hobbesintroduced us to the concept of Calvinballa sport in which the participants make up the rules as they go, never using the same rules twice.)

But in some ways this decision is even more ridiculous. There are pockets of the conservative world that have spent 50 years honing arguments to overturnRoe. The opposite is true when it comes to upending the First Amendment.

Indeed, the same forces that worked to overturnRoespent nearly the same amount of time working to strengthen andexpandjudicial recognition of the First Amendment rights of companiesfrom allowing a bakerto choose notto decorate a cake, to allowing companies to cite the First Amendment as a reasonnot to provide contraceptionas part of a health plan, and deciding that the First Amendment didnot allow Congress to barcertain types of expenditures in support of political candidates.

No matter how you feel about Masterpiece Cakeshop, Hobby Lobby or Citizens United, all three were cases driven by conservative arguments that relied heavily on the fundamental position that the First Amendment barred restrictions on corporate expression, including the right to not be forced to endorse, enable, or support certain forms of expression.

I pointed out how Ken White had once noted that there just wasnt a deep bench of conservative judges looking to take away 1st Amendment rights. And that actually held for a while:

As First Amendment lawyerKen White notedback in the comparatively innocent days of November 2016, regarding Donald Trumps call to open up our libel laws, You can go shopping for judicial candidates whose writings or decisions suggest they will overturnRoe v. Wade, but it would be extremely difficult to find ones who would reliably overturn [key First Amendment precedents.]

But, as if to just put a spotlight on their lack of actual principles, a huge part of the Republican establishment flipped on this point on a dime, solely to punish tech companies that they feel have become too woke. Its almost as if they only support the 1st Amendment for those who ideologically agree with them.

I mean, Justice Clarence Thomas, who almost certainly will vote to uphold the 5th Circuit, will be doing a complete 180 on his concurrence in Masterpiece Cakeshop. In that one, he argued the Supreme Court should have gone even further to make it clear that forcing a baker to decorate a cake for a gay couple would violate the bakers free speech, and dismissed the key cases the 5th Circuit relied on in the NetChoice case (FAIR and Pruneyard) as being wholly inapplicable, while highlighting the importance of Miami Herald v. Tornillo (the case that the 5th Circuit says is wholly different) on the 1st Amendment protecting the right for private operators to exercise control over the messages they send.

With Dobbs, everyone knew where it was going, because conservatives spent 50 years working up to it. But the 5th Circuit ruling lays bare how there are no principles among an unfortunately large segment of todays Republicans in both statehouses and courts. Its not about principles. It is entirely focused on punishing people they dont like.

Theres a lot more in the Daily Beast piece, but I wanted to highlight that one element that hadnt received as much attention.

Filed Under: 1st amendment, 5th circuit, andy oldham, clarence thomas, compelled speech, content moderation, hb 20, social media, texas

Originally posted here:
Conservatives Loved Expanding The 1st Amendment To Corporations Until Last Year. Wonder Why? - Techdirt

Freedom Forum has funded the new First Amendment reporter to help USAT Network Tennessee develop sophisticated storytelling around critical freedoms.

Tennessee Voices: A conversation with Ken Paulson

MTSU Free Speech Center Director Ken Paulson spoke with Tennessean Opinion Editor David Plazas.

Nashville Tennessean

The Founding Fathers very clearly foresaw the danger of unchecked authority. Their writings go into great detail about the potential for government corruption, the lure of power, and the need for transparency.

This was a uniquely American concept and led to a uniquely American solution: The First Amendment of the United States Constitution. Five freedoms of religion, speech, press, assembly and petition were not to be abridged.

Yet while Americans have consistently shown overwhelming support for the ideas behind the First Amendment, their understanding of how its promises should be interpreted has varied greatly. And they continue to evolve.

Tennessee has long been at the forefront of debate and decision over how these fundamental freedoms should manifest in a pluralistic society. Were nearing the 100th anniversary of the landmark Scopes Monkey Trial in Tennessee and some of the same legal, theological and humanistic arguments that took place then are taking place today.

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

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

Debate over the banning of books, school curriculum, the place of faith, access to government records, and free speech at college campuses and on social media are just a few of the issues of our day.

Thats why weve decided at The Tennessean that it is the right time to devote a full-time reporter focused on covering First Amendment issues.

Funded by the non-partisan Freedom Forum through Journalism Funding Partners, our reporter will be one of the first in the nation to be so dedicated, allowing us to consistently focus more attention and develop sophisticated storytelling around these critical freedoms.

Whats noteworthy is our approach. Some news organizations might cover the First Amendment as related to a press issue with a journalist whose beat is the media, or a question over religious freedom with a legal or religion reporter.

By bringing the topic under a single journalist, well develop the deep sourcing, expertise and focus needed to explore these complex issues and keep them at the forefront of community discussion.

And while we will be mainly covering the issues of Tennessee, well extend our reach more broadly throughout the South and nationally as developments dictate.

The Freedom Forum has a long history in Tennessee, through John Seigenthaler and other past editors of The Tennessean, and through our parent company Gannett. The John Seigenthaler Center opened on the campus of Vanderbilt University more than 30 years ago. With such a rich legacy, it makes even more sense for the USA TODAY Network Tennessee to take this bold step.

It is no coincidence the Bill of Rights begins with the First Amendment. The rights of free speech, freedom of religion, the right to petition, to peaceably assemble and the freedom of the press are foundational to democracy.

These freedoms are exactly what distinguishes the United States from totalitarian regimes such as those found in Syria, North Korea, Iran, China, Saudi Arabia and Russia.

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

Government, as Abraham Lincoln put it nearly a century after the Constitution was signed, must be of the people, by the people, for the people.

Were committed to doing our part to make that happen.

Angele Latham is The Tennessean's new First Amendment reporter. She most recently worked at The Jackson Sun as the government and business reporter.

She was editor of the Independent Appeal in Selmer, Tennessee following graduation from Middle Tennessee State University with a degree in journalism and visual communication. She is a native of Hickman County.

Michael A. Anastasi is editor and vice president of the USA TODAY Network Tennessee, which includes The Tennessean, The Knoxville News Sentinel and The (Memphis) Commercial Appeal. Write to him at manastasi@tennessean.com.

See the article here:
Why USA TODAY Network Tennessee hired a First Amendment beat reporter | From the editor - Tennessean

The Justice Department has hit the Eagle Forum of Alabama with a voluminous subpoena that violates the organizations First Amendment rights to speak freely, engage in the political process, and talk to their elected representatives. Its an intimidation tactic, pure and simple, and shows just how partisan the department has become. This out-of-control behavior should scare every citizen and volunteer organization, no matter where they stand on the political or social spectrum.

Eagle Forum is a very small non-profit in Alabama. It only has one full-time employee and a second, part-time employee. Virtually all of its work on issues of interest to its members is done by volunteers. It is the quintessential, uniquely American grassroots membership organization that French historian Alexis de Tocqueville lauded inDemocracy in America.

As the Eagle Forumsmotion to quashthe government subpoena says, one of the issues its members have been concerned over is gender-altering medical treatment to minors and the permanent and adverse effects of such medical procedures on those minors. Those serious, lifelong effects deeply concern many physicians and parents.

Members of the Eagle Forum made their worries known by doing things every American has an absolute right to do: they spoke out, made speeches, organized meetings, talked to other residents and organizations in the state, and contacted their elected state representatives. In other words, they exercised their constitutional rights to engage in freedom of speech, to peaceably assemble, and to petition the Government for a redress of grievances. They also exercised their right to associate, recognized by the Supreme Court as implicit under the Fourteenth Amendment.

>>>Bidens DOJ Increases Power and Rewards Political Allies

None of these activities should trigger stalking by Justice Department lawyers. So how has this come about?

Earlier this year, the Alabama legislature passed the Alabama Vulnerable Child Compassion and Protection Act, which became effective on May 8. It bans puberty blockers, hormone therapy, and surgery to alter the biological sex of a minor. A huge number of left-wing advocacy organizations immediately sued the state, and the U.S. Justice Department intervened in the lawsuit, echoing their claims that the new Alabama law violates the Equal Protection Clause of the Fourteenth Amendment.

The Eagle Forum is not a party to the lawsuit. Yet the Justice Department has served what is referred to as a third-party subpoena on the Eagle Forum. This subpoena outrageously demands that the Eagle Forum and its members turn over all:

In other words, the Justice Department wants to turn the Eagle Forum inside out, forcing it to turn over its records on everything it does. This would let government lawyers paw through and scrutinize everything, including privileged communications and even personal discussions and communications with other private citizens and nonprofit organizations.

And there isnt a single, justifiable reason for the department to do this. The Eagle Forum is not a party in the lawsuit. It is not a government agency. It is not the legislature. It has no power to vote to enact this (or any) legislation or sign it into law.

Keep in mind that the lawsuit is making a constitutional claim. The plaintiffs, including the Justice Department, are arguing that the statute as written violates the U.S. Constitution. So, what do the Eagle Forums polling data or social media posts have to do with that constitutional question? What do its internal records, its policy goals, initiatives, and/or strategies, or the communications of its members with state legislators have to do with that issue?

The answer is: absolutely nothing. None of the documents or information sought by the Justice Department has any relevance to whether the text of a state law violates the Fourteenth Amendment.

>>>On Offense Against Radical Gender Ideology

This subpoena, issued by Jason R. Cheeks, an attorney in the U.S. Attorneys Office in the Northern District of Alabama, has but one intent: to harass and intimidate a conservative organization for daring to engage in the democratic process by working on an issue that inflames the Left.

The right to associate freely with other citizens who share your interests was recognized by the Supreme Court in 1959 inNAACP v. Alabama.Ironically enough, in that case, the Alabama state government was harassing the NAACP with similar demands for information due to its work on civil rights issues and legislation.

In an affidavit filed with the court in the current case, Rebecca Gerritson, the executive director of the Eagle Forum of Alabama, correctly warns:

If this subpoena is enforced, legitimate, law-abiding organizations like ours will be subject to scrutiny for engaging in constitutionally protected activities. Further correspondence by EFA, including emails, notes, presentations, speeches, interviews, etc. could be weaponized by government officials who hold (or are being required to assert) opposite political views. In addition, enforcement of the federal governments subpoena would set a precedent that would stifle other citizens who want to exercise their constitutional right to make their views known to their elected officials on public policy matters.

This is a dangerous action by the Justice Department. Its something that all Americans who value their constitutional rights should oppose.

Continued here:
This Should Terrify Every American: DOJ Harasses Citizens for Exercising Their First Amendment Rights - Heritage.org