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Nearly 500 anti-LGBTQ bills have been introduced in state legislatures in the U.S. in 2023. Many of those bills seek to reduce or eliminate gender-affirming care for transgender minors or to ban drag performances in places where minors could view them.

Most of those bills have not become law. But many of those that have did not survive legal scrutiny when challenged in court.

Anti-LGBTQ laws that federal judges have concluded do not pass constitutional scrutiny include anti-trans legislation in Arkansas and anti-drag legislation in Tennessee.

A notable feature of these rulings for me a First Amendment scholar is how many rely on the First Amendments protection of free speech. In several of the decisions, judges used harsh language to describe what they deemed to be assaults on a fundamental American right.

Heres a summary of some of the most notable legal outcomes:

Several states passed laws aimed at restricting drag performances. These laws were quickly challenged in court. So far, judges have sided with those challenging these laws.

On June 2, 2023, a federal judge permanently enjoined Tennessees attempt to limit drag performances by restricting adult entertainment featuring male or female impersonators. When a law is permanently enjoined, it can no longer be enforced unless an appeals court reverses the decision.

The judge ruled on broad grounds that Tennessees law violated freedom of speech, writing that it reeks with constitutional maladies of vagueness and overbreadth fatal to statutes that regulate First Amendment rights. He also ruled that the law was passed for the impermissible purpose of chilling constitutionally-protected speech and that it engaged in viewpoint discrimination, which occurs when a law regulates speech from a disfavored perspective.

Three weeks later, a federal judge granted a temporary injunction against Floridas anti-drag law on similar broad grounds.

And in Utah, a federal judge required the city of St. George to grant a permit for a drag show, ruling that the city had applied an ordinance in a discriminatory manner in order to prevent the family-friendly drag show from happening. As in the other cases, the judges ruling was based on First Amendment precedent.

On June 20, 2023, a federal judge permanently enjoined an Arkansas law, passed in 2021 over the veto of then-Gov. Asa Hutchinson, preventing transgender minors from receiving various kinds of gender-affirming medical care, including puberty blockers and hormone therapy.

The judge held that Arkansas law violated the Fourteenth Amendments equal protection clause which ensures laws are applied equally regardless of social characteristics like race or gender because the law discriminated on the basis of sex.

Arkansas claimed its law was passed in order to protect children and to safeguard medical ethics. The judge agreed that these were legitimate state interests, but rejected Arkansas claim that its law furthered those ends.

The judge also held that Arkansas law violated the First Amendment free speech rights of medical care providers because the law would have prevented them from providing referrals for gender transition medical treatment.

During June 2023, federal judges in Florida and Indiana granted temporary injunctions against enforcement of similar state laws. This means that these laws cannot be enforced until a full trial is conducted and only if that trial results in a ruling that these laws are constitutional.

In striking down these unconstitutional state laws on First Amendment grounds, many judges went out of their way to reinforce the point that freedom of speech protects views about sexual orientation and gender identity that may be unpopular in conservative areas.

In his ruling on the St. George, Utah case, U.S. District Judge David Nuffer stressed that Public spaces are public spaces. Public spaces are not private spaces. Public spaces are not majority spaces. The First Amendment of the United States Constitution ensures that all citizens, popular or not, majority or minority, conventional or unconventional, have access to public spaces for public expression.

Nuffer also noted that Public officials and the city governments in which they serve are trustees of constitutional rights for all citizens. Protecting the constitutional rights of all citizens includes protecting the constitutional rights of members of the LGBTQ community and of other gender-nonconforming people.

Free speech rights also extend to those who want to use speech in order to help promote the well-being of LGBTQ people. In ruling that Arkansas law violated the First Amendment, Judge Jay Moody stated that the state law prevents doctors from informing their patients where gender transition treatment may be available and that it effectively bans their ability to speak to patients about these treatments because the physician is not allowed to tell their patient where it is available. For this reason, he held that the law violated the First Amendment.

As additional anti-LGBTQ state laws are challenged in court, judges are likely to continue to use the First Amendment to show how such laws fail to respect Americans fundamental free speech rights.

Mark Satta, Assistant Professor of Philosophy, Wayne State University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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Anti-LGBTQ laws in the US are getting struck down for limiting free ... - Ohio Capital Journal

When I was asked to write a weekly column by The Jewish Link, I needed to choose a name that would introduce my column. I chose Meet Me in the Middle. I consider myself a centrist who strongly believes in the idea of compromise to help accomplish things.

I also dont like to be boxed in when it comes to political issues. I tend to be socially liberal but fiscally conservative. I admired politicians like Senators Joseph Lieberman and John McCain, who often made independent decisions and sometimes crossed party lines on various issues.

The recent Supreme Court case about whether a wedding website designer had a First Amendment right not to speak posed a difficult question for me as to where I would stand. I found that there were legitimate arguments to be made by both sides. However, after digesting all the facts in the case, I firmly believe that the Supreme Court made the right decision.

The case in question involved a wedding website designer who was approached by a gay couple to create a web page to celebrate their marriage. The website designer refused the job, arguing that she had a First Amendment right not to speakand that the state of Colorado could not force her to design a website that celebrated a same-sex wedding.

Contrary to what many people believe, this case was not about whether a website could refuse gay customers. That would be illegal and immoral. In fact, the website designer, Lorie Smith, said that she would gladly create custom graphics and websites for clients of any sexual orientation and that she was willing to work with all individuals, regardless of their race, creed or sexual orientation.

In deciding this case, the Supreme Court was not saying that it was OK for a business to refuse to do business with gay customers. In fact, in 2020, Supreme Court justice Neil Gorsuch wrote the majority opinion that helped to protect gay individuals from discriminatory employment practices,

What this case was about was compelled speech. Can the government require a business that provides expressive services to say things that the business owner feels are objectionable?

For example, could the government require an artist to paint a picture of Hitler with the words A Great World Leader? Does a speechwriter have to accept a job to write an anti-Jewish diatribe for a right-wing politician?

In my opinion, the answer is a clear and definitive no. The First Amendment is not just about the right to express speech freely; its also about the right not to say things that one does not believe.

Justice Gorsuch said it very well: The opportunity to think for ourselves and to express those thoughts freely is among the most cherished liberties and part of what keeps our Republic strong. And when one does encounter objectionable speech, tolerance, not coercion, is our nations answer.

So why is this not a straight First Amendment case? Why are there folks, including three thoughtful and competent Supreme Court justices, who feel that the government should compel this website designer to accept the job and not be able to refuse to work on First Amendment grounds?

I think it relates to the culture wars (for example, gay rights, abortion, gun control and climate change) that has reared its ugly head in America in recent years. When you support a specific cause, there is a tendency to want to protect your speech as much as possible, while not allowing your opponent to speakor in this case your opponents right not to speak at all.

I remember the famous case in 1977 in Skokie, when a group of Nazis wanted to march in uniform, in a community with several thousand survivors of the Holocaust. The Jewish community was outraged at the thought, and most of its members condemned the planned march loudly. While the event deserved all the condemnation it received, I believe the Nazis still had a constitutional right to speak, as long as they were not inciting violence. But given our communitys desire to protect our own people and our own cause, it was not surprising that much of the Jewish population believed that the Nazis did not have the right to march.

We live in a very polarized country. In certain states, Evangelical Christians would like to censor books and other speech they dislike to protect their children and maintain what they believe is a moral society. At the same time, there are people in other states who would find these opinions discriminatory and hateful. And dont think this is a partisan issue. There are also left-wing advocates who want to ban Dr. Seuss books and other books that are racially insensitive, while conservative advocates criticize their opinions.

If we are honest with ourselves, we should be able to put aside our own personal beliefs when it comes to the First Amendment and agree that the right to speakor not to speakis one that is granted to all Americans, regardless of what they believe.

Justice Gorsuch explained it in this way: In this case, Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.

Thankfully, the Supreme Court recognized that the state does not and should not possess such power.

Michael Feldstein is a contributing editor for the Jewish Link. He owns his own marketing consulting firm, MGF Marketing, and can be reached at [emailprotected]

Originally posted here:
First Amendment Reflections - Jewish Link of New Jersey

from the wrong-about-libel-and-wrong-about-this dept

People are finding cool new (probably illegal) ways to unmask people they want to sue. In this case, its a guy who didnt like some things said about him. But in order to get a libel lawsuit going, the plaintiff needs to have a defendant to sue. Heres where all the bad faith begins, as uncovered (and reported) by Paul Levy of Public Citizen.

Frederic Eshelman, a pharmaceutical magnate, resents being criticized by an anonymous gmail user who called him a piece of shit and urged companies to stop collaborating with Eshelman for, among other things, abusing police resources when heused his political influenceto secure the arrest and prosecution of hunters whocorner-crossed his hunting reserveto get from one bit of public land to another. To move forward a defamation claim, he would have to get a subpoena to Google enforced in a California court, and those courts have protected the First Amendment right to speak anonymously by requiring plaintiffs to present complaints that state valid defamation claims, and to present evidence in support of that claim. And Eshelmans supposed defamation claim is more than a little bit fanciful.

Fanciful is putting it kindly. Theres no valid defamation claim here, even if Eshelman manages to convince a court hes not a public figure. (Thats going to be tough to claim, since hes already made headlines at the Washington Post.) But were not even at that point yet. Eshelman wants to unmask the Doe he wants to sue, and he appears to be twisting the truth in hopes of keeping his subpoena to Google from being blocked.

So, instead of just filing a suit for defamation in his home state of North Carolina and domesticating a subpoena to Google in California, hewent straight to the federal court there, invoking28 U.S.C. 1782, a procedure enacted to enable litigants in proceedings outside the United States to obtain needed discovery from US courts. Eshelman doesnt actually have any lawsuits pending abroad his excuse for using this procedure is that, among the recipients of the critical email was a company in India (SEE UPDATE BELOW) and a company in Germany (although as far as I can tell, the company he claims is in Germany is really in California).

The update Levy has added to this post comes from Google the recipient of the questionable subpoena. Google dug around a bit on 6 Degree PRs website and discovered the CEO of the company actually lives in the Philadelphia area, which means every entity Eshelman wished to exploit to bypass the First Amendment is actually a US entity or resident. The First Amendment applies.

Eshelmans use of this loophole to bypass First Amendment scrutiny would be problematic enough if it was his idea. But it wasnt. As Levy notes, it was likely his lawyers idea.

Eshelmans counsel, from the well-known libel litigation boutiqueClare Locke, told me that he has used the section 1782 procedure several times before, always successfully.

Now, that doesnt necessarily mean every Section 1782 action filed by this firm has ultimately involved US-based entities. But it does suggest the firm has played a little loose with the facts to acquire subpoenas to unmask litigation targets.

Fortunately, this bogus attempt to unmask a critic is likely to go nowhere. Both Public Citizen [PDF] and Google [PDF] have filed motions asking the judge to quash the illicitly obtained subpoena. Both make the same point: this is bad faith litigation wholly unsupported by the known facts. This is from Public Citizens motion:

On January 13, 2023, Eshelman filed an Ex Parte Application for an Order Pursuant to 28 U.S.C. 1782 against Google LLC, seeking subpoenas to learn from Google the identity of an anonymous American citizen who criticized him in a single email. [] As grounds for the request, Eshelman purportedly intends to file two defamation actions against Doe in foreign courts, claiming that the email was sent to two international business contacts. Neither the application nor Eshelmans supporting declaration alleges that Eshelman suffered any injury to his reputation in either of the two foreign countries, Germany and India.

Googles take:

The Application appears to be an attempt to circumvent the policies of the United States. The U.S. has a policy of protecting speech and public debate under the First Amendment. See, e.g., Bigelow v. Virginia, 421 U.S. 809, 829 (1975) (The policy of the First Amendment favors dissemination of information and opinion). There is evidence demonstrating that this matter involves a U.S. citizen or resident who sent an email to U.S. recipients, implicating the First Amendment. The Anonymous Speakers statement is plainly an opinion based on disclosed facts. This statement would not be actionable in U.S. courts, evidencing an intent to evade the protections of the First Amendment.

[]

Applicant does not appear to have any basis to bring claims under Indian or German law, and he has not shown that his possible claims are actionable or that foreign proceedings are even viable. Instead, this appears to be a purely domestic dispute without a clear connection to foreign countries.

Theres basically no chance this ends up going Eshelmans way. These are shady tactics in service of a libel lawsuit Eshelman has zero chance of winning in a US court. Hopefully, the court will quash the subpoena and force Eshelman to play by the (US) rules. And, if he has to do that, hopefully hell realize moving forward with a lawsuit is only going to net him another loss. If Eshelmans smart (and theres nothing here that suggests that he is), hell quit while hes only this far behind.

Filed Under: 1st amendment, defamation, frederic eshelman, gmail, section 1782, subpoena Companies: clare locke, google

Read the rest here:
Pharma Exec Trying To Dodge First Amendment By Pretending He's ... - Techdirt

(The Daily Signal) The Senate will vote soon on thecontroversial nomination of D.C. Judge Loren AliKhan to the U.S. District Court for the District of Columbia.

The Senate Judiciary Committee voted 11-10 entirely along party lines Thursday to advance AliKhans nomination to a full Senate floor vote, despite a coalition of more than a dozen legal and policy organizations urging senators to vote against her confirmation.

During her short 11 years as a litigator, she has developed a remarkably long record of advocacy againstreligious freedom, reads a coalition letter sent to the chairman of the Senate Judiciary Committee, Sen. Dick Durbin, D-Ill.,and to Sen. Lindsay Graham, R-S.C., the panels ranking member. All of the Democrats on the committee voted in AliKhans favor, while all the Republicans opposed her confirmation.

While we recognize all attorneys must represent the best interest of their clients, each attorney is at liberty to determine which arguments to use, the letter continues. The courts have continuously rejected her discriminative arguments against people of faith and their houses of worship, and faith-based organizations.

AliKhan currently serves as an associate judge on the District of Columbia Court of Appeals and previously worked as the D.C. solicitor general.

First Liberty Institute, a nationwide legal organizationprotecting religious liberty,drafted the letter that was signed by 16 organizations, includingthe Christian Legal Society, The Heritage Foundation, The American Association of Christian Schools, the Faith & Freedom Coalition, and the Lutheran Center for Religious Liberty. (The Daily Signal is the news outlet of The Heritage Foundation.)

As a litigator, Loren AliKhan repeatedly took extreme positions in opposition to theFirst Amendments[protections] for religious organizations, houses of worships, and citizens, Hiram Sasser, executive general counsel for the First Liberty Institute, said in an email to The Daily Signal. She poses a grave threat to the religious liberty rights of all Americans. The Senate should reject her nomination.

In several cases, AliKhan has employed anti-religious liberty arguments, according to First Liberty.

In theSupreme Courtcase Hosanna-Tabor v. Equal Employment Opportunity Commission, AliKhan called on the court to strike down the ministerial exemption, which prevents government interference in the employment hiring practices of religious institutions.

According to the letter, AliKhan argued that Nothing in any right under the Religion Clauses grants religious organizations such a sweeping exception. The Supreme Court unanimously called her position untenable and hard to square with the text of the First Amendment, which gives special solicitude to the rights of religious organizations.

The most egregious example of AliKhans hostility to religious freedom, according to the coalition letter, was demonstrated by herargument that houses of worship meeting outdoors, masked and socially distanced pose a greater threat to the COVID-19 pandemic than the allowed city-wide protests.

Arguing before theD.C. District Court, AliKhan, according to the letter, chose not to bring in a medical expert to support her claims, instead she brought in a Ph.D. in Poli-Science. He asserted that the risk of spreading COVID-19 is higher for events where people are standing (for a church service) than where they are moving (for a protest).

Alikhan-Coalitons-Letter-Download

The Senate is expected to vote on AliKhans nomination later this month.

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Religious freedom coalition urges Senate to reject judge nominee ... - The Lion

Estimated read time: 4-5 minutes

SALT LAKE CITY The city of St. George must issue a permit for a Utah-based group that organizes drag performances to host an all-ages drag show in a public park, a federal judge ruled, calling the city's attempt to stop the show unconstitutional discrimination.

"Public spaces are public spaces. Public spaces are not private spaces. Public spaces are not majority spaces," U.S. District Judge David Nuffer wrote in a Friday ruling granting the preliminary injunction requested by the group. "The First Amendment of the United States Constitution ensures that all citizens, popular or not, majority or minority, conventional or unconventional, have access to public spaces for public expression."

Southern Utah Drag Stars and its CEO, Mitski Avalx, sued the city of St. George in May after the city denied the group permits for an all-ages show it aimed to host in a public park in April. A complaint filed in federal court accused city officials of "flagrant and ongoing violations of their free speech, due process, and equal protection rights," and asked for St. George to reverse its decision and authorize a drag show at the end of June.

A city events coordinator told Drag Stars, Avalx said, that the group could start advertising for the April show before obtaining a permit. The city council later denied the permit, citing a never-previously-enforced ordinance that forbids advertising before permit approval.

The permit denial based on that ordinance, Nuffer wrote in his ruling, was a pretext for discrimination.

"Public officials take an oath to 'support, obey, and defend the Constitution of the United States and the Constitution of the State of Utah,'" Nuffer wrote. "They do not merely serve the citizens who elect them, the majority of citizens in the community, or a vocal minority in the community."

The city now may not enforce any new advertising prohibitions against the group or its show, Nuffer ruled, ordering that the performance must "take scheduling precedence over any other event."

In a statement, the city of St. George said it is committed to ensuring public parks and facilities remain viable and open to residents and those who want to hold special events.

"Our intent is always to follow the law both when we enact laws and when we enforce laws, and we will continue to do so," the statement said. "We have read Judge Nuffer's opinion and while we are disappointed in the result, we are currently evaluating our options in light of the ruling."

The lawsuit marked the most recent development in a fight over drag shows in St. George. Since HBO filmed a drag show in a public park last year for an episode of its series "We're Here," the city has emerged as a flashpoint in the nationwide battle over drag performances as they've garnered newfound political scrutiny in Republican-controlled cities and states.

Public events like drag queen story hours and the all-ages event that Avalx intended to put together have been increasingly targeted in legislatures throughout the country. In May, Florida Gov. Ron DeSantis signed a ban on minors attending drag shows, and Montana Gov. Greg Gianforte signed a ban on people dressed in drag from reading books to children at public schools and libraries.

In Utah, a proposal from a St. George Republican to require warning notices for events like drag shows or pride parades in public places stalled after advancing through the state House of Representatives in March. The proposal stemmed from the pushback that resulted from the HBO-produced drag show in St. George.

City officials issued permits for the show over objections from some council members and community activists. City Manager Adam Lenhard resigned months later after writing councilmembers to say that he could not legally deny the show permits, according to emails obtained by The Salt Lake Tribune.

Avalx founded Southern Utah Drag Stars after the fallout, hoping to showcase drag for members of the LGBTQ+ community in a rural place where such forms of entertainment are often lacking.

"I made it my mission to continue to do these events and not just one month out of the year, but to do so people that were like me when I was little ... can see that there are queer adults that get to live a long and fulfilled life," Avalx said in an interview with The Associated Press. "My biggest ambition was to provide a public space where people can go to a park and enjoy a show that's meant for everyone."

Link:
A Utah city violated the First Amendment in denying a drag show permit, judge rules - KSL.com