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Save Yamhill County organizers say commissioner's goal was to misdirect voters days before ballots were mailed

Less than a week before ballots began arriving in mailboxes across the county, attorneys for Commissioner Lindsay Berschauer demanded that the organization seeking her recall, Save Yamhill County, retract statements made on the petitions circulated over the past several months. The embattled commissioner's attorneys threatened legal action if the statements were not retracted.

"On the recall petition filed Nov. 18 during subsequent circulation of that petition, and likely in other subsequent communications, you have made numerous allegations about Commissioner Berschauer without providing factual support," attorney Steve Elzinga of the Portland firm Sherman Sherman Johnnie & Hoyt wrote on Feb. 25.

It appears the threat of legal action was without teeth.

"Despite her promise in her March 4 Facebook Live video to bring a lawsuit against Save Yamhill County, chief petitioner Phil Fovre and myself, we have heard nothing further from either the commissioner or her attorney, and don't expect that she will follow through with her threat," Lynette Shaw, the co-petitioner on the recall effort, said in an email. Berschauer defeated Shaw in a 2020 race for Position 2 on the commission.

Shaw dismissed the threatened lawsuit as a political ploy to distract voters from the real issue: Berschauer's fitness for office.

"Instead of answering the concerns of her constituents or talking with the community about what troubled them enough to call for her resignation, the commissioner has, from the very first day the recall was filed, followed a strategy of casting doubt on the recall effort with lies and mischaracterizations and, even more disturbing, making repeated personal attacks on her constituents who have supported her recall. The threatened lawsuit is just more of the same," Shaw said.

Berschauer countered that her intent in threatening a lawsuit was to maintain the integrity of county governance.

"My purposes in pursuing legal action against this fraudulent recall effort are not only to protect taxpayers from having to pay for these unwarranted and unlawful pursuits in the future (this is costing county taxpayers $80,000), but to also reinforce that recalls should be reserved for egregious and unlawful behavior, not differences of opinion over public policy decisions," she said in an email. "I have also incurred considerable costs in having to defend myself against this unlawful recall attempt, therefore economic damages would be pursued as well."

Berschauer further argued that the wording on the petition, circulated during the first of the year and garnering more than 7,000 signatures, differed significantly from the petition circulated in November that was disqualified by the county on a technical error. She said her team had concerns about the statement on the first petition, but its disqualification rendered it unnecessary to retain an attorney to question its legality.

"When Mr. Fovre filed the second petition, we were shocked to see that his statement changed considerably," Berschauer said. "The language and accusations were markedly different from 'round one.'"

At that point Berschauer hired an attorney, who suggested that the statements were fundamentally false and could be proven as such.

"The statute says that the individual must have known at the time that their statements were false," said Berschauer, who owned and operated a political consulting firm prior to being elected. "We believe, given that Mr. Fovre had spent months on this effort, that he and Save Yamhill County knew the statements provided in the recall petition were false."

Shaw explained that the wording on the petition, technically called a "recall statement," was approved by County Clerk Brian Van Bergen, which allowed SYC to begin circulating the petition and collect signatures.

"That approval happened for this recall on Nov. 18," Shaw said. "The petition is a public document and has been accessible to Commissioner Berschauer and her legal counsel since Nov. 18. We never heard anything from the commissioner or her counsel about the wording on our statement until well after our signatures were submitted for certification and ballots were soon to be delivered to voters."

Shaw said Berschauer's goal was misdirection, plain and simple.

"We believe the commissioner's threat of a lawsuit was intended to harass and intimidate our recall effort," Shaw said. "It's a political strategy she has used with us before: threaten and claim violations of some sort, but never follow through because the damage is done with the threat and misleading messaging that she stands up around it. It's a hardball political tactic, and it has no place here in local politics, especially when used against members of the community."

Shaw responded to Berschauer's threat of legal action with a promise: "If a suit is ever filed, it will most definitely be met with an anti-SLAPP motion. It's highly doubtful she'll take it further, because she understands that this is a classic SLAPP suit, denying us our First Amendment rights, and it's not winnable."

SLAPP is an acronym for Strategic Lawsuit Against Public Participation and is intended to silence critics by forcing them to mount a costly legal defense. Anti-SLAPP laws were adopted in Oregon and many other states more than a decade ago to protect individuals and organizations from litigation while protecting their First Amendment rights.

Berschauer argued that SYC's actions violated state statute that make it illegal to complete and file a recall petition with reckless disregard and that it contains false statement of material fact related to the public officer subject to the recall.

"We also believe that their actions won't qualify for anti-SLAPP protections given the statute's clear language."

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Berschauer threat of legal action not carried through - Portland Tribune

Jalil Muntaqim, a former Black Panther and Black Liberation Army member convicted of killing two police officers in the 1970s, has been invited to speak at SUNY Brockport. (Jalil Muntaqim / Facebook.com)

by Sabrina Conza

SUNY Brockport faces significant backlash over plans to host a discussion with Jalil Muntaqim, previously known as Anthony Bottom, a former Black Panther and Black Liberation Army member, who was convicted of killing two police officers in the 1970s.

Muntaqim is slated to speak at the university April 6 about his stint as a Black Panther and his time serving nearly 50 years as a political prisoner according to the event description. After facing criticism on Twitter, SUNY Brockport President Heidi Macpherson released a statement, reading, in part:

We do not support the violence exhibited in Mr. Muntaqims previous crimes, and his presence on campus does not imply endorsement of his views or past actions. However, we believe in freedom of speech. SUNY Brockport has routinely held speaking events involving controversial speakers from various background[s] and viewpoints, and will continue to do so. These conversations are uncomfortable. They are meant to be. Theyre about gaining a new perspective.

The university has upheld its First Amendment obligations by refusing to cancel the event, and in doing so affirms the importance of free expression on campus.

This is the correct approach. Universities, especially public institutions like SUNY Brockport, may not disinvite a speaker based on backlash even if that speaker was convicted of murdering police officers 51 years ago. However, there are some who would prohibit the university from allowing the event to proceed.

For example, New York Sen. Thomas OMara tweeted at the university, urging it to cancel Muntaqims talk.

Members of the public, including elected officials, can speak out against controversial speakers like Muntaqim, but calling for cancellation of an invited speakers event advocates unlawful censorship which, if carried out, would violate the universitys First Amendment obligations.

Another New York senator, Minority Leader Rob Ortt, wrote to SUNY Brockport criticizing its invitation of Muntaqim, taking issue with the characterization of Muntaqim as a political prisoner and urging it to consider those who have family members in law enforcement. He asked that the university rescind Muntaqims invitation to speak on campus.

New York gubernatorial candidate, Rep. Lee Zeldin, also weighed in, calling SUNY Brockports decision to provide Jalil Muntaqim with a taxpayer funded platform disgraceful and urging the institution to disinvite Muntaqim.

And Josh Jensen, a New York assemblyman, said the university should disinvite Muntaqim, criticizing his appearance as wholly inappropriate.

Even amidst pressure from elected officials to disinvite Muntaqim, SUNY Brockport must stand firm in its decision to allow the speaking appearance to continue as planned. It is the universitys responsibility to place its First Amendment obligations above the calls of detractors, regardless of the level of controversy or the volume of calls for censorship.

Public institutions like SUNY Brockport may not disinvite a speaker based on backlash.

And although not the case in this situation, legislators must be careful not to suggest that they wield government authority against institutions that fail to accede to their demands of censorship. Legislators, administrators, and the public must instead take a more speech approach to this situation by expressing their own views about Muntaqim and SUNY Brockport. This option is the correct alternative, as it will lead to more individuals taking advantage of instead of violating the First Amendment.

As we continue to watch the situation unfold, we look forward to SUNY Brockport allowing the event to continue as planned.

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SUNY Brockport must not heed calls to disinvite former Black Panther, convicted murderer - Foundation for Individual Rights in Education

On March 18, 2022, Fortune Brands Home & Security, Inc. entered into a Second Amendment and Incremental Agreement (the “Amendment”) to the 364-day unsecured term loan credit agreement dated as of November 29, 2021 among the Company, the lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent (as amended by the First Amendment and Incremental Agreement dated as of March 1, 2022, the “Existing Credit Agreement”; the Existing Credit Agreement as amended by the Amendment, the “Credit Agreement”). Under the Amendment and the Credit Agreement, subject to the satisfaction or waiver of certain conditions, the Company will be able to borrow an incremental term loan in the aggregate principal amount of $500,000,000. Except for the incremental amount which the Company may borrow, the terms and conditions contained in the Credit Agreement were not changed as a result of the Amendment. See the Company’s Current Reports on Form 8-k filed with the Securities and Exchange Commission on March 1, 2022 and December 2, 2021 for a description of these terms. The proceeds of borrowings under the Credit Agreement may be used for general corporate purposes, including working capital, capital expenditures, permitted acquisitions and other lawful corporate purposes.

Excerpt from:
Fortune Brands Home & Security, Inc. Enter into Second Amendment and Incremental Agreement to the 364-Day Unsecured Term Loan Credit Agreement -...

The First Amendment of the United States Constitution, adopted in 1791 along with other nine other bills comprising the Bill of Rights three years after the ratification of the Constitution, created a lot of clauses dealing with multiple purposes.

There have been a number of legal challenges regarding the First Amendment recently, from Sarah Palin's lawsuit against the New York Times to suits accusing Project Veritas, Fox News, the Gateway Pundit, One America News and others of "intentionally promoting and profiting from false claims of voter fraud during the 2020 election," the New York Times reported.

1. What is the First Amendment?

The First Amendment guarantees freedoms concerning religion, expression, assembly and the right to petition, according to Cornell Law School. It forbids Congress from both promoting one religion over others and also restricting an individual's religious practices. The amendment further guarantees freedom of expression by prohibiting Congress from restricting the press or the rights of individuals to speak freely. Finally, the amendment guarantees the right of citizens to assemble peacefully and to petition their government.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances," the amendment states.

2. Limitations of the First Amendment

The First Amendment has some limitations. Notably, the amendment doesn't prevent a private employer from setting its own rules regarding freedom of expression, but does protect citizens against government limits on expression, according to Middle Tennessee State University.

According to USCourts.gov, the freedom of speech does not include the right:

The First Amendment again only protects against the government, not private employers or consequences from other citizens. Limits to the freedoms in the First Amendment exist as peoples individual rights must be balanced against the rights of society, according to the Voice of America.

For example, a person cannot force the tenets of his or her religion on others while trying to practice that religion. Similarly, harmful speech, such as yelling fire in a crowded room, is not protected speech, nor is publishing a lie that causes harm to someone. Also, different types of speech have different amounts of freedom. Political speech is considered different than commercial speech, which includes advertisements.

According to the American Civil Liberties Union, freedom of speech does not prevent punishing conduct that intimidates, harasses or threatens another person, even if words are used. Threatening phone calls are not constitutionally protected, for example.

3. What the First Amendment does

Middle Tennessee State University states that the First Amendment prevents against the government requiring you to say something you don't want to, or keeping you from hearing or reading the words of others, as you have the right to receive information, even if you never speak or write yourself.

USCourts,gov also states that the freedom of speech includes the right:

The First Amendment also makes it so that the government can not, through "prior restraint," block publication of any material unless it could prove that it would "surely" result in "direct, immediate and irreparable" harm to the nation, the Supreme Court found in U.S. v. New York Times. The public has a "right to know," the court found, which is essential to fully participate in democratic decision-making.

The government's claims of "national security" must always be scrutinized to make sure they are valid, according to the ACLU.

4. What about censorship?

Censorship is the suppression or prohibition of words, images or ideas that are considered offensive, obscene, politically unacceptable or a threat to security.According to the First Amendment Encyclopedia, "censors seek to limit freedom of thought and expression by restricting spoken words, printed matter, symbolic messages, freedom of association, books, art, music, movies, television programs and internet sites."

Censorship by the government, even though it appears to be becoming more common in states like Florida and Texas, is unconstitutional, according to the Carnegie Library. The First Amendment was extended to the states in the 1940s, according to Encyclopedia Britannica. When the government, either at the federal, state or local level, engages in censorship, it goes against the First Amendment rights. The Supreme Court is often called upon to ensure that First Amendment rights are being protected and could be called upon again in the future.

However, private individuals and groups may still engage in censorship. As long as government entities are not involved, this type of censorship presents no First Amendment implications. That includes censoring popular music, movies, art and television to exclude words or images that may be considered "vulgar" or "obscene." Facebook, Twitter and other social media can regulate or restrict speech hosted on their platforms because they are private entities.

The Supreme Court has previously reaffirmed the right to receive information is a fundamental right protected under the U.S. Constitution when it stated in Board of Education v. Pico in 1982 that "the right to receive ideas is a necessary predicate to the recipient's meaningful exercise of their own rights of speech, press and political freedom," according to the American Library Association.

5. The freedom to speech does not equate a freedom from consequences

While everyone is entitled to voicing their own opinions, ideas and views without interference from the government, according to North Texas Daily, what happens after statements are voiced is up to others. When people voice opinions of discrimination, be it racism, homophobia, transphobia, etc., others can voice differing opinions and call out individuals for their negative comments. Individuals can also face backlash for their comments made on social media platforms that are derogatory, racist or otherwise discriminatory.

Individuals can be held accountable for their words and actions by entities like businesses or organizations, including their employer. Hateful speech and political views are not the same thing, per North Texas Daily, as hateful speech causes emotional and mental harm to someone while political beliefs do not. Calling someone out for saying hateful statements is also within a person's freedom of speech.

People who call out others for harmful, hateful statements are not trying to promote censorship, per North Texas Daily. Individuals are entitled not to tolerate hateful rhetoric and are able to say things against it. The First Amendment was created to encourage the flow of ideas and communication between people without government interference.

An individual who does not like being called out for their negative comments can stop voicing those comments on public platforms. Once a statement is on a public platform, others have the right to comment back and condemn those statements.

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What does the First Amendment actually mean? Here's an explainer - The Edwardsville Intelligencer

As Fox News mounts its defense in the Dominion case and in a lawsuit by another voting systems company, Smartmatic, the networks lawyers have argued that core to the First Amendment is the ability to report on all newsworthy statements even false ones without having to assume responsibility for them.

The public had a right to know, and Fox had a right to cover, its lawyers wrote. As for inviting guests who made fallacious claims and spun wild stories, the network quoting the Sullivan decision argued that giving them a forum to make even groundless claims is part and parcel of the uninhibited, robust and wide-open debate on matters of public concern.

Last week, a New York State judge ruled that the Smartmatic case against Fox could go forward, writing that at this point, plaintiffs have pleaded facts sufficient to allow a jury to infer that Fox News acted with actual malice.

The broadness of the First Amendment has produced strange bedfellows in free speech cases. Typically, across the political spectrum there is a recognition that the cost of allowing unrestrained discourse in a free society includes getting things wrong sometimes. When a public interest group in Washington State sued Fox in 2020, alleging it willfully and maliciously engaged in a campaign of deception and omission about the coronavirus, many First Amendment scholars were critical on the grounds that being irresponsible is not the same as acting with actual malice. That lawsuit was dismissed.

But many arent on Foxs side this time. If the network prevails, some said, the argument that the actual malice standard is too onerous and needs to be reconsidered could be bolstered.

If Fox wins on these grounds, then really they will have moved the needle too far, said George Freeman, executive director of the Media Law Resource Center and a former lawyer for The New York Times. News organizations, he added, have a responsibility when they publish something that they suspect could be false to do so neutrally and not appear to be endorsing it.

Fox is arguing that its anchors did query and rebut the most outrageous allegations.

Paul Clement, a lawyer defending Fox in the Smartmatic case, said one of the issues was whether requiring news outlets to treat their subjects in a skeptical way, even if their journalists doubt that someone is being truthful, was consistent with the First Amendment.

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First Amendment Scholars Want to See the Media Lose These Cases - The New York Times