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From a decision last week by the Washington Court of Appeals in Sehmel v. Shah, written by Judge Lisa Worswick, joined by Acting Chief Judge Anne Cruser and agreed with on this point by Judge Bernard Veljacic:

Appellants argue that the act of not wearing a mask communicates a political message, and is therefore entitled to the protections of the First Amendment. We disagree.

Although the First Amendment forbids restrictions on speech, federal case law has long recognized that the First Amendment protects more than the "spoken or written word." "'Speech' includes nonverbal conduct if the conduct is 'sufficiently imbued with elements of communication.'"

In deciding whether conduct may constitute speech, thereby implicating the First Amendment, courts examine whether (1) the person intended to convey a message, and (2) whether it was likely that a person who viewed the conduct would understand the message. The United States Supreme Court rejected the idea that any conduct may be labeled as speech whenever the person engaging in the conduct intends to express or communicate an idea. The expression must be "overwhelmingly apparent" and not simply a kernel of expression. The fact that "'explanatory speech is necessary is strong evidence that the conduct at issue is not so inherently expressive that it warrants protection' as symbolic speech" [indirectly quoting Rumsfeld v. FAIR (2006)].

[A]n extensive line of federal cases has established that the choice to wear a mask is not expressive conduct because "there are several non-political reasons why one may not be wearing a mask at any given moment." Stewart v. Justice (S.D. W. Va. 2021). See Minnesota Voters All. v. Walz (D. Minn. 2020) (holding that an order requiring face coverings did not target conduct with a significant expressive element); Denis v. Ige (D. Haw. 2021) (same); Justice (holding that failing to wear a mask is not expressive conduct because "failing to wear a face covering would likely be viewed as inadvertent or unintentional, and not as an expression of disagreement with the Governor."); Antietam Battlefield KOA v. Hogan (D. Md. 2020) (holding that wearing a mask could be viewed as a means of preventing the spread of COVID-19, not as expressive any message).

We apply the same analysis here and hold that wearing or not wearing a mask is not sufficiently expressive so as to implicate First Amendment protections. While an individual may choose to wear, or not wear, a mask as a way to make a political statement, the subjective intent of the person engaging in the conduct is not determinative. Here, there is a host of reasons why a person may not be wearing a mask. Therefore, not wearing a mask is not "overwhelmingly apparent" as communicating a political message. Rumsfeld.

UPDATE: Sorry, messed up the headline; it at first said "Mask Ban ," but of course this is a mask mandate. Don't know what neurons crossed in my head for that one . Thanks to commenters Michael P and ah.clem for the correction.

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Mask Mandate Doesn't Violate the First Amendment Right to Engage in Symbolic Expression - Reason

Its never a good sign when a government launches a policy and instantly decrees that criticism of that policy is not allowed. Its happening in the US right now. This week President Biden signed a bill which, among other things, will pump billions of dollars into the renewable-energy sector. And woe betide the American citizen who queries the bill. Pity the American voter who wonders out loud if it might not be the best idea in the world for an advanced economy like Americas to become increasingly reliant on whimsical wind and solar power. For the Biden administration has already said that seeding doubt about renewables is unacceptable, and might even need to be silenced.

Its called the Inflation Reduction Act. It will do many things, including shake up elements of Americas tax system and lower the cost of prescription drugs. It is also, in the words of Forbes, the most comprehensive US initiative to mitigate climate change yet. It promises to plough $369 billion into energy security and climate-change reduction programmes over the next decade. Renewables will get a massive boost. The White House predicts that, thanks to this act, the US will have 950million solar panels and 120,000 wind turbines by 2030. And it is apparently every Americans duty to nod uncritically along with this revolution in renewables, because any expression of doubt about it could be bad for public health.

That chilling decree came from Gina McCarthy, the White Houses national climate adviser. In June, as this bill was wending its way through the Senate, Ms McCarthy gave an interview in which she called for a crack down on climate-change misinformation, as one headline put it. Theres nothing new in green types dreaming of silencing their opponents, of course. For decades the eco-movement has cynically branded critics of climate-change alarmism deniers and insisted they be deprived of the oxygen of publicity. But what is striking about McCarthys authoritarian disdain for climate-change misinformation is that she says she wants to chase down not only those who supposedly deny the science, but also those who question government policy.

McCarthy says denialism has moved on. Now its not so much denying the problem [of climate change], she says; rather, its seeding doubt about the costs associated with [green energy] and whether they work or not. So weve gone from science denialism to what? Political denialism? Policy denialism? Fossil-fuel companies are using dark money to fool the public about the benefits of clean energy, she says. And apparently, seeding doubt about clean energy is equally dangerous to [climate-change] denial. Asked if such doubts pose a threat to public health, in that they might hamper officialdoms plans to go green, McCarthy said: Absolutely. The solution to such health-harming scepticism? We need the tech companies to really jump in, she said. That is, the social-media giants must do more to thwart the policy deniers.

Welcome to the era of Gina McCarthyism, where officials insist that certain ideas are just too dangerous for public life. It is really worth thinking about the magnitude of McCarthys intervention. As the bill that Biden signed this week was being pored over and discussed by the American peoples elected representatives, this official from the White House was saying that any questioning of clean energy policy is equally dangerous to outright climate-change denial. As the Wall Street Journal points out, the shift from obsessing over science denialism towards fretting about policy denialism represents a move to censorship phase two which is shutting down debate over climate solutions. In problematising discussion about a particular policy, at the exact time that that policy was being weighed up by elected representatives, McCarthy was enforcing a chilling effect on the democratic process.

McCarthys call on Big Tech to jump in raises serious questions about the circumvention of the First Amendment. To the envy of many of us outside observers, the American government is forbidden from restricting freedom of expression. But private companies, on the platforms they own, face no such restraints. They can delete content, hide controversial ideas, unperson people. And its clear that some in the Biden administration are keen to outsource the authoritarian instincts that they are not allowed to act on to their likeminded friends in Silicon Valley. The social-media overlords are increasingly doing the censorious bidding of US government officials intervening in debates on everything from Covid to clean energy. Perhaps those conservative scholars who say Big Tech companies behave as state actors when they censor at the behest of government, and therefore should be sued under the First Amendment, are right.

It isnt just Gina McCarthy. Many in the green elite now openly talk about policy denial. Policy denial is when someone accepts that climate change is happening but [denies] that theres anything that can or should be done, says one observer. Scientific American says modern-day climate denial includes oppos[ing] policy measures to confront the problem. It gives as an example of policy denial Bjorn Lomborgs belief that poverty and access to safe food and drinking water need to be addressed before climate action is even considered. So even to question the prioritisation of climate change above all other issues, even to say Lets fix poverty first, is to be a denialist. This is a blatant effort to demonise criticism, scepticism and debate, which should be the lifeblood of every democracy worth the name.

Eco-censorship has always been fundamentally political. Even when greens said they were only going after people who question the science, really it was an ideological clampdown on heretics who dare to question the hysterical claims and harmful policies of the climate-change lobby. Now, however, its clearer than ever that this is political censorship. Out has gone the handwringing over science denial, in has come the demonisation of policy denial that is, of politics itself. Bidens new bill is not all bad. For one thing it will help to boost the nuclear industry, by investing in both existing nuclear plants and newer, more advanced reactors. But the billions for renewables are questionable. The entire idea of advanced societies turning to unpredictable, unreliable renewables is questionable. And people must be free to say so. It isnt denialism to question government policy its democracy.

Brendan ONeill is spikeds chief political writer and host of the spiked podcast, The Brendan ONeill Show. Subscribe to the podcast here. And find Brendan on Instagram: @burntoakboy

To enquire about republishing spikeds content, a right to reply or to request a correction, please contact the managing editor, Viv Regan.

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The green threat to the First Amendment - Spiked

California church wins court battle over COVID fines

Ainsley Earhardt speaks with Pastor Mike McClure of San Jose's Calvary Chapel and constitutional attorney Mariah Gondeiro of the Advocates for Faith & Freedom non-profit to hear about their victory against COVID mandates.

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A California appeals court dropped nearly $200,000 in fines for a San Jose church that came under fire for violating COVID-19 restrictions on indoor gatherings during the height of the pandemic.

Mike McClure, pastor of Calvary Chapel, and constitutional attorney Mariah Gondeiro detailed the experience on "Fox & Friends" Thursday, relaying what they consider a victory for religious freedom.

"It's a blessing for the First Amendment," McClure told host Ainsley Earhardt.

CALIFORNIA CHURCH THAT WAS FINED OVER $200K FOR DEFYING COVID-19 RESTRICTIONS GETS FINES DROPPED

Pastor Mike McClure, from Calvary Chapel San Jose, speaks during a press conference outside of Santa Clara Superior Court in downtown San Jose, Calif., on Tuesday, Dec. 8, 2020. (Nhat V. Meyer/MediaNews Group/The Mercury News via Getty Images)

"Pastors across the country, I think we need to realize that we have this freedom that God's given us, and we're needed more today than ever with the hope, truth, love"

Gondeiro said the appellate court elected to drop the charges because the U.S. Supreme Court had already established a legal precedent on the issue.

"The Supreme Court has been very clear over the last year that these orders violated the First Amendment. This is a religious freedom case, and they violated the First Amendment because they discriminate against religion," she said.

SUPREME COURT DENIES NEVADA CHURHC'S APPEAL OF ATTENDANCE RESTRICTION AMID CORONAVIRUS PANDEMIC

Supporters of Calvary Chapel San Jose wave to cars outside of Santa Clara Superior Court in downtown San Jose, Calif., on Tuesday, Dec. 8, 2020. (Nhat V. Meyer/MediaNews Group/The Mercury News via Getty Images)

"The county as well as the state of California allowed a lot of essential businesses or businesses that they deemed essential to stay opened, but not this church."

Gondeiro went on to restate the court acted in accordance with judicial precedent by dropping the fine.

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The legal struggles for McClure are not over yet, however. The county is still attempting to slap him with a $2.8 million fine for the pandemic-era violations.

"If it's jail time, I'm ready for whatever. Honestly, I'm not wanting to fight the county. I think that they just don't understand the Constitution," he said.

"The fees are something I have honestly not thought about."

In a press release, Gondeiro said she expects the church to have a "complete victory" in that case as well.

Taylor Penley is a production assistant with Fox News.

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California church that defied COVID restrictions wins court battle: 'A blessing for the First Amendment' - Fox News

The ordinance bans soliciting from people within 50 feet of some public spaces including Town Hall, the Joe Eakes and Ocean Front parks, The Community Center banks and financial institutions, and beach access points. (PCD).

KURE BEACH A Pleasure Island town overhauled its solicitation amendment on Monday, removing its permit process and offering clearer guidance on prohibited areas.

The most notable additions to the new Kure Beach ordinance, which restricts peddling, solicitation and begging in certain public spaces, are the ban on solicitation in an aggressive manner and a fine for violations.

During the meeting, Town Attorney James Eldridge said the rewrite lists specific public spaces such as beaches and right-of-ways where those activities are barred and eliminate its discretionary permit process. Previously, solicitors would have to gain town permission to apply to solicit services or beg for money.

Council passed the amendment with unanimous approval.

However, it raises questions about the legality of its contents under the First Amendment. Panhandling is protected in public spaces, including roads and sidewalks, per 2015s U.S. Court of Appeals Fourth Circuit case, Reynolds v. Middleton. Since it is considered free speech, municipalities would need to provide a burden of proof to enact restrictions, which are required to be narrow and specific in scope.

In July, the City of Wilmington discussed initiatives to deter solicitation as it cannot ban it, despite a prohibition ordinance in its books. It essentially decided to increase funding for social services and encourage people to donate to nonprofits rather than directly give money to people on the street.

Municipalities can regulate panhandling that intimidates, threatens or causes physical harm to the public. Under North Carolina statute, law enforcement is within its rights to cite someone for aggressive behaviors while panhandling.

Kure Beachs new ordinance identifies six categories of whats considered aggressive:

The ordinance bans soliciting from people within 50 feet of some public spaces including Town Hall, the Joe Eakes and Ocean Front parks, The Community Center banks and financial institutions, and beach access points. Also, people cannot solicit operators of cars on a public street or people in line at a commercial establishment.

Solicitors cannot operate on the beach, in parking lots, within town-owned or Wave Transit vehicles and in the Towns public right-of-ways. At the meeting, Eldridge said he would change the latter to specific paved right-of-ways to allow people to utilize sidewalks and dirt roadsides.

The bottom line is that if someone is in the street, they cant solicit, but if they are on the sidewalk or the dirt, they can, Eldridge said.

Private property is also forbidden if the owner or tenant informs the solicitor to stop or posts a visible notification banning the act.

Solicitation is limited to daylight hours and if someone violates the ordinance, they can now be charged with a $50 civil citation, due no more than 72 hours after issuance.

One Kure Beach resident pointed out during the meetings public comment period the amendment may still cause confusion and be too restrictive.

[The amendment] does not produce reasonable places when you take away all the prohibited places listed, Megan Garrett said during the meeting. It pretty much says you can do this in public but not in any of the public parts of the town.

However, Garrett approved banning aggressive solicitation only. Allowing people to panhandle anywhere, in her opinion, does not impede the welfare of citizens and is exercising the right to free speech.

Eldridge noted that the towns restrictions are permitted under the amendments purpose. He added the public welfare and safety is served by restricting where solicitation can occur.

We recognize the right to the First Amendment to solicit and panhandle, Eldridge said. As you all know, theres been a lot of prohibitions or regulations that have been struck down by the way they are worded, whereas reasonable time, manner and place restrictions are bound to be enforced.

During her comment, Garrett also raised concerns about other activities that could be considered solicitation, like busking.

One could argue that having an open guitar case could be interpreted as a request for a donation, and therefore, prohibited in all the places one would normally busk, she said. If this is the councils intent, I ask that you reconsider.

Eldridge told Port City Daily busking would not be subject to the new amendment and is still under review by town staff, but council members had questions about other activities like ice cream trucks and door-to-door salespeople.

He added the town distinguishes advertising from solicitation salespeople would be soliciting, but ice cream and food trucks are more nuanced. He said the town is considering revising the solicitation definition to give clearer guidelines on busking and mobile businesses.

Port City Daily reached out to the Kure Beach Police Department to find out how it will enforce the ordinance, but no one responded by press.

Reach journalist Brenna Flanagan atbrenna@localdailymedia.com

Want to read more from PCD? Subscribenowand then sign up for our newsletter,Wilmington Wire, and get the headlines delivered to your inbox every morning.

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Solicitation in Kure Beach: Town adds fine and defines banned areas, raises First Amendment concerns - Port City Daily

In the middle of July, three big blue billboards went up in and around Jackson, Mississippi. Pregnant? You still have a choice, they informed passing motorists, inviting them to visit Mayday.Health to learn more. Anybody who did landed on a website that provides information about at-home abortion pills and ways to get them delivered anywhere in the United Statesincluding parts of the country, such as Mississippi, where abortions are now illegal under most circumstances.

A few days ago, the founders of the nonprofit that paid for the billboard ads, Mayday Health, received a subpoena from the office of the attorney general of Mississippi. (The state has already been at the center of recent debates about abortion: Dobbs v. Jackson Womens Health Organization, the ruling that overturned Roe v. Wade, upheld a Mississippi statute by allowing states to put strict limits on abortion.) The subpoena, which I have seen, demands a trove of documents about Mayday Health and its activities. It may be the first step in an effort to force Mayday Health to take down the billboards, or even to prosecute the organizations leaders for aiding and abetting criminal conduct.

Mayday Health is not backing down. This week, it is taking out a television ad on Mississippi channels and putting up 20 additional billboards. This makes the legal fight over the Jackson billboards a crucial test in two interrelated conflicts about abortion that are still coming into public view.

Read: The abortion-rights message that some activists hate

The first is that the availability of abortion pills, which are very safe and effective during the first three months of pregnancy, has transformed the stakes of the abortion fight. The pro-life movement has hoped that states new powers to shut down abortion providers will radically reduce the number of abortions around the country. The pro-choice movement has feared that the end of Roe will lead to a resurgence of back-alley abortions that seriously threaten womens health.

Yet the changes wrought by the recent Supreme Court ruling may turn out to be more contained than meets the eye: Legal restrictions on first-trimester abortions have become much harder to enforce because a simple pill can now be used to induce a miscarriage. Abortion by medication is widely available in large parts of the country; as Mayday Health points out on its website, even women who are residents in states where doctors cannot prescribe such pills can set up a temporary forwarding address and obtain them by mail.

The second brewing conflict is about limits on free speech. So long as abortions required an in-person medical procedure, the pro-life movement could hope to reduce them by shutting down local clinics offering the service. Now that comparatively cheap and convenient workarounds exist for most cases, effective curbs on abortion require the extra step of preventing people from finding out about these alternatives. That is putting many members of the pro-life movement, be they Mississippis attorney general or Republican legislators in several states who are trying to pass draconian restrictions on information and advice about abortions, on a collision course with the First Amendment.

Some limits on speech are reasonable. States do, for example, have a legitimate interest in banning advertisements for illegal drugs. If a cocaine dealer took out a billboard advertising his wares, the government should obviously be able to take it down. Especially when it comes to commercial speech, some common-sense restrictions on what people can say or claim have always existed and are well-justified.

But the laws that Republicans are now introducing in state legislatures around the country go far beyond such narrow limits on objectionable commercial speech. In South Carolina, for example, Republican legislators have recently sponsored a bill that would criminalize providing information to a pregnant woman, or someone seeking information on behalf of a pregnant woman, by telephone, internet, or any other mode of communication regarding self-administered abortions or the means to obtain an abortion, knowing that the information will be used, or is reasonably likely to be used, for an abortion.

Read: The coming rise of abortion as a crime

This lawwhich is modeled on draft legislation that the National Right to Life Committee is trying to get passed in many states around the countrywould seriously undermine the right to free speech. It could potentially make doctors in states where abortion is actually legal liable to prosecution for discussing their services with someone who calls them from a state where abortion is illegal. It could even outlaw basic forms of speech such as news stories containing information that might be used by someone seeking an abortion. Theoretically, even this article could fall under that proscription.

The subpoena issued by the office of Mississippis attorney general is objectionable for similar reasons. Mayday Health is not advertising a commercial product or service. The organization does not handle or distribute abortion pills. All it does is provide information. Although one could reasonably believe that the information Mayday Health is providing may be used to commit acts that are now illegal in some parts of the United States, a ban on informational speech that can be used for the purposes of lawbreaking would be unacceptably broad and vague. After all, would-be lawbreakers might also consult the blog posts of lawyers who explain how to object to an improper search of a vehicle or study the pages of a novel to figure out how to make a Molotov cocktail. Should the attorney or the novelist also be considered to have aided or abetted a crime?

Recent efforts to suppress speech about abortion would seriously undermine the nations ability to debate the topic openly and honestly. Anybody who believes in the importance of the First Amendment should oppose them. As Will Creeley, the legal director of the Foundation for Individual Rights and Expression, has pointed out, These proposals are a chilling attempt to stifle free speech Whether you agree with abortion or not is irrelevant. You have the right to talk about it.

In recent years, the wider debate about free speech has undergone a strange transformation. Historically, the American left staunchly defended the First Amendment because it recognized the central part that free speech played in the struggles against slavery and segregation, and in the fight for the rights of women and sexual minorities. But as establishment institutions, including universities and corporations, became more progressive, and parts of the left came to feel that they had a significant share in institutional power, the absolute commitment to free speech waned.

Progressives started to find the idea of restrictions on free speech appealing because they assumed that those making decisions about what to allow and what to ban would share their views and values. Today, some on the extremist left endorse restrictions on free speech, demanding campus speech codes and measures to force social-media sites to deplatform controversial commentators and censor what they claim is misinformation.

Mary Ziegler: Why exceptions for the life of the mother have disappeared

The transformation of the lefts position on freedom of speech has allowed both principled conservatives and the less-than-principled protagonists of the MAGA movement to cast themselves as defenders of the First Amendment. In the mind of many people, the cause of free speech has astoundingly quickly shifted from being associated with left-wing organizations such as the ACLU to becoming the property of right-leaning pundits and politicians.

This makes the new front in the fight over abortion rights an important reminder of why the left should never abandon the cause of free speech. If the left gives up on the core commitment to free speech, what people can say is as likely to be determined by the attorney general of Mississippi as it is by college deans or tech workers. Curbs on free expression have always been a tool of governments that seek to control the lives of their citizens and punish those who defy them. The same remains true today.

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Why Freedom of Speech Is the Next Abortion Fight - The Atlantic