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Earlier this year, Virginia Commonwealth University banned students with fewer than 12 earned credits from joining fraternities and sororities. (Postmodern Studio / Shutterstock.com)

by Zach Greenberg

When FIRE asks universities to protect students free speech rights, weve gotten our fair share of outright denials, curt rejections, and shameless ghosting. But rarely does a public university suggest the First Amendment doesnt really apply to them. Allow us to present Virginia Commonwealth Universitys response to FIREs letter urging VCU to end deferred recruitment.

On Aug. 1, VCU banned students without 12 credits earned at the university from joining fraternities and sororities. FIRE warned the university that deferred recruitment violates students freedom of association, explaining in our July 26 letter that students have the fundamental right to join campus groups. Freedom of association is enshrined in the First Amendment, which protects the right of the individual to pick his own associates so as to express his preferences and dislikes, and to fashion his private life by joining such clubs and groups as he chooses.

Our argument is simple: Students are adults, bestowed with the full array of First Amendment rights, and fully capable of affiliating with a wide variety of organizations on and off campus. If VCU students are allowed to work full-time, play Division I athletics, and devote their energies to more than 500 other campus groups, common sense dictates they should also be able to rush a fraternity or sorority.

Not so, says VCU. According to the university, our letter relies on cases that are not controlling in the Fourth Circuit the United States Court of Appeals for the Fourth Circuit a federal court whose rulings are binding on all state universities in Virginia. VCU claims that none of the cases FIRE cites deal with requirements a university places on students to be eligible to join a fraternity or sorority or other student organization.

Were pretty sure SCOTUS is binding on all states and, by extension, the public universities of those states, like VCU.

Lets check the tape: First, we cite Healy v. James, the seminal United States Supreme Court case establishing the expression and associational rights of student groups. Were pretty sure SCOTUS is binding on all states and, by extension, the public universities of those states, like VCU.

Next, we have Gay Alliance of Students v. Matthews, a case from the Fourth Circuit holding that a universitys denial of recruitment privileges violates students First Amendment rights. In Matthews, the university denied recognition to a student group, Gay Alliance of Students, because, in part, affiliation of individuals with homosexual activist organizations may have adverse consequences to some individuals involved.

The Fourth Circuit firmly rejected this rationale, finding that The very essence of the First Amendment is that each individual makes his own decision as to whether joining an organization would be harmful to him, and whether any countervailing benefits outweigh the potential harm.

VCU cannot ban students from associating with campus groups.

The university that lost the case? Virginia Commonwealth University. In the Fourth Circuit.

Seems like that would be applicable to VCU arbitrarily determining what groups its students can join today. One need not be a lawyer to understand how precedent works.

The dozen other cases we cite see our letter for yourself build the argument that VCU cannot ban students from associating with campus groups. Students have the right to join groups disfavored by the university, such as fraternities and sororities at VCU. As stated in Matthews, VCU cannot prevent students from joining groups merely because doing so may have adverse consequences to some individuals involved.

Whats next? Will VCU ban students who are bad at board games from the chess club? Will it ban unathletic students from playing intramural sports? Will it ban uncreative students from art societies or lactose intolerant students from the Alliance of Milk Drinkers? There is no First Amendment exception for university administrators coercing students for their own good, as courts have decried such paternalistic restrictions on students rights for more than 60 years. Irony abounds as VCU first-semester and transfer students surrender their First Amendment rights upon entering the state boasting the motto Thus Always to Tyrants.

Afford all your students the opportunity to join every campus group.

VCU promised a more detailed response to FIRE by the end of the month and asked if we have anything to add. We are content to rest on the binding legal precedent in our initial letter cases we urge VCUs legal team to read and then apply to its unlawful ban on students joining campus groups.

Beyond that, we have nothing to tell VCU but this: Save yourself the embarrassment of explaining to a judge how Virginia Commonwealth University is not bound by courts in the Commonwealth of Virginia. Afford all your students the opportunity to join every campus group. Uphold the First Amendment by ending deferred recruitment.

FIRE defends the rights of students and faculty members no matter their views at public and private universities and colleges in the United States. If you are a student or a faculty member facing investigation or punishment for your speech,submit your case to FIRE today. If youre faculty member at a public college or university, call theFaculty Legal Defense Fund24-hour hotline at 254-500-FLDF (3533).

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Does the First Amendment apply to Virginia Commonwealth University? The public university doesn't seem to think so. - Foundation for Individual Rights...

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.

The rest is here:
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