Archive for the ‘First Amendment’ Category

Trump Files Hilariously Mendacious Brief In Tech LOLsuits – Above the Law

(Photo by Win McNamee/Getty Images)

Time for a little check in on the Trump tech LOLsuits this Friday afternoon, since the former president has been cluttering our inbox with alerts of new filings in his never-ending quest to get Twitter, Meta, and YouTube to take him back.

Last July, Trump sued the three social media giants for tortious deplatforming. The theory of his case is that refusing to let him live-tweet Fox and Friends every morning is actually a First Amendment violation. Now, some might quibble that only the government can violate the First Amendment. But Trumps lawyers have an answer for that one, and it is that Twitter, Meta, and YouTube are in fact agents of The Man because they are secretly carrying out the edicts of Rep. Adam Schiff, who has threatened to yank Section 230 immunity if they dont silence Trump.

Which sounds crazy as we type it, because it is literally crazy.

In February, Twitter filed a statement of recent decision, citing a recent holding on the same fact pattern in the same district. A bunch of anti-vax weirdos who sued YouTube for axing their videos alleging that the site had became a government agent following orders from Rep. Schiff to boot the horse paste orgy sites got tossed out for failure to state a claim.

Simply put, [t]he publicly expressed views of individual members of Congress regardless of how influential do not constitute action on the part of the federal government, US District Judge Jon S. Tigar wrote.

Not to be outdone, Trumps crack legal team would like to highlight its own case. To wit, theyre drawing the courts attention to a recent Ninth Circuit holding in a suit brought by Twitter against Texas Attorney General Ken Paxton.

After the site booted Trump, the AG made a series of public threats and launched an investigation, purportedly into possible false statements about the companys content moderation policy. Twitter sued to block the query, alleging that it was retaliatory and stifled the companys freedom of speech. The trial court dismissed the case as unripe, since the AGs document demands were not self-executing, and further process would be necessary before the company was actually compelled to cough anything up.

The Ninth Circuit agreed: This case is not prudentially ripe. The issues are not yet fit for judicial decision because OAG has not yet made an allegation against Twitter, because the facts are not yet developed, and because Twitter need not comply with the CID, can challenge it if it is enforced, and could have challenged the CID in Texas state court.

What does this fact pattern have to do with Trumps stupid tech suits, other that Ken Paxton is only going after Twitter because he thinks hes Will Smith charging onto the stage at the Oscars to defend his wife Donalds honor?

Well, nothing.

But that hasnt stopped Trumps lawyers from lobbing it toward the docket three times yesterday with the notation That decision rejected First Amendment protections for alleged misleading statements by Defendant Twitter, Inc.

No, it really didnt. Like, not even close. Thats a total misrepresentation by multiple officers of the court to multiple federal judges.

Ah, well, nevertheless.

Trump v. Twitter [Docket via Court Listener]Trump v. Meta [Docket via Court Listener]Trump v. YouTube [Docket via Court Listener]

Liz Dye lives in Baltimore where she writes about law and politics.

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Trump Files Hilariously Mendacious Brief In Tech LOLsuits - Above the Law

Ludington: Most of us learned early on that words have consequences – Des Moines Register

Margaret Ludington| Special to the Herald-Index

I heard a rumor that something happened at the Oscars ceremony March 27. An actor landed one on a presenter after the guy made a wisecrack about the actors wife?

I mean, come on, what about the First Amendment? What about Congress shall make no law…?

Guess I just answered my own question. The First Amendment restricts government censorship of stupid remarks. It doesnt limit a private citizens ability to stage a smackdown if you insult him or his family.

Most of us figure out pretty early on that words have consequences. Maybe our moms washed dirty words out of our mouths with soap or sent us to time-out. Our siblings and playmates teach us the limits of free speech pretty quickly.

Id be more surprised to learn that the presenters words hadnt gotten him in trouble long before Oscar night.

And whats with all the Hollywood handwringing? Stories of regular guys standing up to bullies is Hollywoods bread and butter.

Remember Gary Cooper in High Noon? What about Alan Ladd in Shane? Even little Dorothy goes after the Wicked Witch of the West to stop her bullying the people of the Land of Oz. And the Karate Kid learned to overcome his fears and defeat his bullying opponent.

Sorry if my movie references are a bit dated. It comes from watching everything on streaming or TCM.

Someone could make a great screenplay out of that brief scene at the Oscars, something about the secrets and the pain hiding beneath all those tuxedos, designer gowns and rented jewelry. Probably they already have.

The actors personal meltdown came at an inconvenient time for those trying to rehabilitate the Oscars' image. The focus was supposed to be on the African-American, lesbian actress and the deaf actor breaking the glass ceiling and winning awards.

The Oscars have long been about a tight-knit group of money men, and I do mean men, pushing the Hollywood image that was best for business. They controlled what films got made, who got the leading roles, what films made it to theaters and what Oscar nominations were handed out. And dont kid yourself, they controlled what was printed on those sealed envelopes.

What amazes me isnt that an actor took a swing at a presenter for his bad-taste joke. Im amazed that all the hard-working movie people, some pretty big names included, havent staged a riot in protest for more than a century of discrimination.

More: Jordin Sparks coaches Iowans Sam Moss and Haley Slaton on 'American Idol' during Hollywood week

Margaret Ludington has lived in Altoona since 1971. She is a retired staff writer and editorial writer for the Herald-Index. Margaret is a mother of two, grandmother of four. She and her husband travel frequently and have visited every state except Alaska and five Canadian provinces.

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Ludington: Most of us learned early on that words have consequences - Des Moines Register

Class-action lawsuit filed against Akron Children’s Hospital over vaccine mandate firings – News 5 Cleveland WEWS

AKRON, Ohio Former workers from Akron Childrens Hospital who were fired after refusing to comply with the hospitals vaccine mandate are now taking their battle to federal court.

The 66 workers are represented in a class-action lawsuit that argues they were denied religious accommodations and that the hospital violated their First Amendment rights.

Jan. 11 was the hospital deadline for employees to be fully vaccinated against COVID-19. Then, at the end of February, the hospital system officially terminated those employees still out of compliance.

I believe it's very clearly unconstitutional, said Warner Mendenhall, the attorney representing the former hospital workers.

Mendenhall said all of the plaintiffs applied for religious exemptions but were denied.

These people have been working in the pandemic for two years. They've been exposed. All of them have natural immunity and the exemptionsby not granting the exemption, Akron Children's is hurting services to the community, said Mendenhall.

The complaint states the hospitals actions violate the former workers First Amendment rights to freely exercise their religion and is seeking an injunction plus damages including back pay and reinstatement or front pay.

Employers are allowed to have requirements, and health care providers traditionally have required flu vaccines, TB tests, all sorts of things, said Sharona Hoffman, a professor of law and bioethics at Case Western Reserve University School of Law.

Hoffman believes the lawsuit wont hold up because the U.S. Supreme Court upheld the federal vaccine mandate for health care workers earlier this year imposed by the Centers for Medicare & Medicaid Services.

Akron Childrens Hospital also released a statement in response to the lawsuit:

Mendenhall thinks this is a case of "government actor doctrine" where a private business acts in the interests of the federal government.

The federal government has reached out so far and it's both offered incentives and coercion for private employers and employers like Akron Children's Hospital to do the federal government's bidding. And when they do that, they step into the shoes of the federal government actor. And we believe that these employees have a right to sue directly under the First Amendment, said Mendenhall.

Hoffman said thats a difficult argument to prove and win.

Employers have to follow mandates all the time. And that does not make them an arm of the government. Quite to the contrary, they're simply complying with what the government requires, said Hoffman. The government has all sorts of regulations that apply to employers, including minimum wage, including safety protocols at work, including that you have to have drinkable water and bathrooms and not discriminateI could go on and on. And none of that makes employers an arm of the government. It makes them comply with government orders that are put in place to protect the public.

A date has not yet been set for initial hearings in the case.

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Class-action lawsuit filed against Akron Children's Hospital over vaccine mandate firings - News 5 Cleveland WEWS

SCOTUS is about to decide whether a public school football coach can pray on the field – The Conversation

The Supreme Court has consistently banned school-sponsored prayer in public K-12 schools, whether at the start of the school day, during graduation ceremonies or before football games. Under the Equal Access Act, the Supreme Court has affirmed that students may organize prayer and Bible study clubs during non-instructional hours. Even so, school staff and outside adults may not actively participate.

Lower courts have mostly forbidden public school teachers from openly praying in the workplace, even if students are not involved. Yet the Supreme Court has not directly addressed such a case until now.

Kennedy v. Bremerton School District, a case from Washington state, scheduled for oral arguments on April 25, 2022, could usher in more religious activities by teachers and other staff in public schools.

At issue is whether a school board violated the rights of Joseph Kennedy, a football coach it suspended, and whose contract it did not renew, because he ignored its directive to stop kneeling in silent prayer on the field after games. Kennedy claims that the board violated his First Amendment rights to freedom of speech and freedom of religion, along with his rights under the Civil Rights Act, which prohibits employment discrimination.

The Supreme Court faces two key questions: whether prayers public school employees say in front of students are protected by their First Amendments rights; and, if they are, whether educational officials must still prohibit them in order to avoid promoting particular religions and violating the Establishment Clause.

From my perspective as a specialist in education law, the case is noteworthy because the court should resolve sticky questions surrounding whether public school employees can pray when supervising students, or if doing so crosses the line and becomes impermissible government speech.

Kennedy v. Bremerton also reflects the inherent tension between the First Amendments two clauses on religious freedom: The Free Exercise clause protects individuals right to practice their faiths as they wish, while the Establishment Clause forbids the government from establishing a religion.

In other words, a tension exists between public employees right to religious expression within the boundaries of the law and employers needs to avoid violating the Establishment Clause.

In 2008, Kennedy, a self-described Christian, worked as head coach of the junior varsity football team and assistant coach of the varsity team at Bremerton High School. He initially knelt on the 50-yard line after games, regardless of the outcome, offering a brief, quiet prayer of thanks.

While Kennedy first prayed alone, eventually most of the players on his team, and then members of opposing squads, joined in. He later added inspirational speeches, causing some parents and school employees to voice concerns that players would feel compelled to participate.

The school board directed Kennedy to stop praying on the field because officials feared that his actions could put it at risk of violating the First Amendment. The government is prohibited from making laws respecting an establishment of religion, or prohibiting the free exercise thereof often understood as meaning public officials cannot promote particular faiths over others.

In September 2015, school board officials notified the coach that he could continue delivering his inspirational speeches after games, but they had to remain secular. Although students could pray, he could not. Even so, a month later Kennedy resumed his prayers. He had publicized his plans to do so, and was joined by players, coaches and parents, while reporters watched.

Bremertons school board offered accommodations to allow the coach to pray more privately, which he rejected. At the end of October, officials placed him on paid leave for violating their directive, and eventually chose not to renew his one-year contract. He filed a suit in August 2016.

The coachs suit raised two major claims namely that the school board violated his rights to freedom of speech and religion. However, the Ninth Circuit twice rejected Kennedys claims, in 2017 and 2021, resulting in his appeal of the second case to the Supreme Court.

The Ninth Circuit denied Kennedys claim that he had the right to private free speech on the field, reasoning that because he was a public employee, reasonable observers could have assumed his prayer had the boards support. In particular, the court found that he acted as a public employee, not a private citizen. The court did explain that educators are free to display their faith on their own time, such as when Kennedy sat in the stands as a fan during a game after he was suspended.

Turning to Kennedys freedom of religion claim, the court was satisfied that the school boards restrictions on his activity met a well-established principle: Public officials have to demonstrate a compelling government interest before they can limit someones fundamental rights, such as freedom of religion, and the restrictions must be narrowly tailored to achieve that interest.

Here, the court accepted the boards position that it had a compelling interest to avoid violating the Establishment Clause. In so ruling, the court balanced the tension between the constitutional rights to religion, and from religion the Free Exercise Clause, and the Establishment Clause, respectively.

The Ninth Circuit also rejected the coachs claims under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of race, religion, sex or national origin. Nor did the court accept his claims that the board failed to accommodate him, or that officials retaliated against him in not renewing his contract.

As part of its analysis, the Supreme Court is likely to consider whether the coach risked sending the message he was acting with the school boards approval, as a form of protected speech, or if his prayers were unprotected private speech.

In addition, the court may address whether Kennedy failed to act as a role model, as is expected of educators. Courts consistently agree that school employees who work with students forgo some rights by virtue of their positions. For example, the Seventh Circuit affirmed that a school board in Indiana could dismiss a teacher who violated its policy by not remaining neutral about current events in class.

As in Kennedy, boards can choose not to renew the contracts of employees who violate their policies. But until now, public employees on the job who ignored their employers lawful policies have been unable to claim that they were exercising their rights to freedom of religion or speech as a defense. It remains to be seen whether the court will acknowledge that educators cannot ignore lawful directives at work, in order to avoid unduly influencing their students, or whether the justices will open the door to granting teachers greater freedom of expression.

[Over 150,000 readers rely on The Conversations newsletters to understand the world. Sign up today.]

As is often the case in high-profile disputes, the Supreme Court is expected to rule in late June or early July. While the case is unlikely to end disagreements over public employees prayer as free speech, in my view, the justices will likely walk a fine line in balancing the interests of educators who wish to pray at work and school boards seeking to avoid violating the Constitution.

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SCOTUS is about to decide whether a public school football coach can pray on the field - The Conversation

And then the band didn’t play | News, Sports, Jobs – Alpena News

In October 1981, our schools closed.

We had failed to pass a millage sufficient to keep them open.

Several reasons prompted this unfortunate event. State funding for education had been diminished to the extent its replacement through local funding was a contentious strain. There were other reasons, some reasonable, some not.

It was a time of adjustment, and, as is common in such times, many things did not go smoothly.

In retrospect, we could have conducted ourselves better. As it was, we made the national news with strong negative community connotations, connotations that were exacerbated unnecessarily.

There was dissension, strife, name-calling, and then the band didnt play.

I remember the parade. Im not sure just which one it was it may well have been the Santa Claus Parade, but there was a good-sized crowd gathered along Chisholm Street when, moving with other entrants in its turn, along came the Alpena High School varsity band.

But it marched to a private cadence; one its director had set, a rhythm the crowd could not discern.

No drums drummed, no horns played, no melody lifted the spirits of the day; twirlers twirls were left unfurled; no batons were tossed to float freely if only for a little while.

Instead, a hushed progression demonstrated its displeasure with adults who had denied them the notes they wished to play. So, they played no notes at all that day.

It was a non-musical contribution of discordance our band performed not the music we needed to help bring us together again; not the music we had taught them, not the music where our pride resided with our pleasure in them.

Their non-selection did not play well, and, for the first time, I didnt hear the music play.

The second time was at President Barack Obamas first inauguration, when he paused to make mention of a specific Supreme Court case, Citizens United. This case allows unlimited independent political campaign spending by corporations and unions, an opinion authored by Justice Samual Alito Jr. He was present with the other Supreme Court justices that day.

Its an unfortunate ruling, in my view, one that deserved President Obamas condemnation for its false equivalence of money with speech that unleashed a wrecking ball on the legitimacy of our politics. A wrecking ball we are living with today.

That was the last time Alito appeared at any State of the Union address. He took his horn and went home, not to be seen again in the congressional halls of we the people.

Think about that, the only time in the oldest, greatest democracy on Earth when all three branches come together under one roof to consider the state of our union this guy stays home, piqued.

And Alito wasnt at President Joe Bidens recent State of the Union address, either nor was Justice Clarence Thomas or Justice Neil Gorsuch.

But, it only gets worse Justice Thomass wife, Ginni, has been let loose.

Consider her recently reported exchange with President Donald Trumps former chief of Staff, Mark Meadows, regarding the 2020 presidential election and their attempts to overthrow its confirmed results.

This is a fight of good versus evil, wrote Meadows. Evil always looks like the victor until the King of Kings triumphs.

Mrs. Thomas replied, You guys fold; the evil just moves fast down and underneath you all.

Its not enough to attempt to overthrow a presidential election; they need to cloak their efforts in a justification of spirituality after all, they have Jesus Christ on their side!

Freedom of religion is central to our American democracy, a freedom enshrined in the First Amendment to our Constitution, a document considered by many to be of divine inspiration and at the core of this nations greatness.

Its a guarantee our forefathers fought long and hard for, guaranteeing to each of us the right to worship, or not, as we chose and that no religion is to be considered superior to another by our government.

Congress shall make no law respecting the establishment of religion or prohibit the free exercise thereof.

First Amendment to the United State Constitution

But Ginni Thomas and Mark Meadows believe they represent the sole sources of Gods work, adopting an air of confident absurdity that evil would prevail but for their enlightened actions.

History has taken us down this road before to disastrous effect.

Bundle in with their assertion of religious superiority, a selection of conspiracies, a catchy phrase no one has a good definition for, such as cancel culture, an intolerance or two, maybe even a hate, and we are well down a blasphemous path transforming a deity into a political hack.

All this leads to a place where no one has to show up to follow our Constitutions mandate respecting anothers religion, or the Golden Rule or the performance of enlightened music.

All one has to do is believe in a political party.

Finding there, mired in its politics, a form of grace.

Good grief.

Doug Pughs Vignettes runs weekly on Saturdays. He can be reached at pughda@gmail.com.

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And then the band didn't play | News, Sports, Jobs - Alpena News