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Your Turn Mike Berry Columnist

There is no COVID-19 exception to the First Amendment, wrote U.S. District Court Judge Reed OConnor. His words, directed to the United States Navy, should remind all Americans and especially those in positions of authority that the Constitution refuses to bend to authoritarian impulses.

Earlier this month, OConnor issued a preliminary injunction against the U.S. Navy, preventing it from taking any further action against the 35 Navy SEALs and Special Warfare service members represented by the First Liberty Institute. It also provides hope for the thousands of members of the military who bravely raised religious objections to receiving the vaccine knowing full well their fates had long been sealed.

Those service members now have a roadmap for how to challenge the unjust policies and procedures described by OConnor as theater the Department of Defense has used to trample upon our service members constitutional rights.

Soldiers fight for our rights dont infringe theirs

While it is true our service members give up much to protect our freedoms, as OConnor underscored, we do not ask them to lay aside their citizenry and give up the very rights they have sworn to protect.

That includes when it comes to the vaccines. Thus far, the Navy has granted hundreds of medical and administrative exemptions to sailors. Ironically, there is even an exemption available for sailors who are participating in clinical vaccine trials that use placebos. In other words, sailors can be exempt from the vaccine if they participate a clinical trial during which they remain unvaccinated.

In contrast, the Navy has been entirely unaccommodating to the SEALs and thousands of other service members whose sincere religious beliefs forbid them from receiving the vaccine.

The Navy SEALs First Liberty represents Christians of various denominations. Each presented evidence and arguments to the court explaining the nature of their religious objection to the COVID vaccine. Some earnestly prayed to God for guidance and believe receiving the vaccine is a mortal sin. Some object because of the vaccines well-documented ties to the use of aborted fetal cells during its development.

I too, as a military reserve officer, have sought an accommodation due to my religious objection to the vaccine. Although I am still awaiting a response, I do not expect to be the first and only approved religious accommodation.

I have had many conversations about faith and service with these men. The Navy can no more question their spiritual devotion than it can question their patriotism or their war-fighting abilities.

Yet the Navy has issued zero accommodations for those asserting a religious objection to the COVID vaccine. Zero. The Navy, according to OConnor, merely rubber stamps each denial. Forcing a service member to choose between their faith and serving their country is abhorrent to the Constitution and Americas values. And punishing him or her for simply requesting a religious accommodation is purely vindictive and unlawful.

No attempt to accommodate SEALs

There was a time when our military found a way to accommodate service members religious beliefs while allowing them to serve. During World War II, the Army tried to court-martial Private Desmond Doss because he refused to carry a weapon due to his religious beliefs that taking life is wrong. The Army came to its senses and allowed Doss to serve as a non-combatant medic. Doss famously went on to earn the Medal of Honor for his heroic feats during the Battle of Okinawa, during which he saved more than 70 lives. If the military can find a way to accommodate service member religious beliefs during a world war, it can surely do so today.

The dozens of Navy SEALs and Special Warfare members First Liberty represents collectively have more than 350 years of military experience and more than 100 combat deployments. These are exactly the kinds of elite warriors our nation needs. And yet they have each suffered real harm because of their religious beliefs.

Some were ordered to remove their special warfare device SEALs wear the famed the Trident which indicates they are no longer part of the special warfare community. Others were warned that even if their religious accommodation were somehow miraculously approved, they would still be kicked out of the SEALs in disgrace. The Navy also threatened to recoup the expenses invested in them to make them the elite warriors that they are. At the preliminary injunction hearing last month, one of our SEAL clients who sustained a traumatic brain injury while serving our nation took the stand. He testified that the Navy sought to prevent his attendance at a traumatic brain injury clinic because he refused the vaccine. He offered to travel at his own expense, in his own vehicle, to a clinic that was indifferent as to his vaccination status. It defies common decency to deprive a service member of necessary medical treatment for injuries sustained in the line of duty. That is no way to defend a nation or run a military.

Pandemic or no, the government including our military has no license to abrogate the freedoms enshrined in our law and Constitution. The men who wrote the First Amendment were no strangers to plague, famine or war. They understood that the worst tyrannies are those imposed supposedly for the greater good.

Until now, none of the lawsuits challenging the militarys vaccine mandate have been successful. OConnors ruling is a beacon of hope that paves the way for our men and women in uniform to continue serving with their religious liberty intact. For that, every freedom-loving American should be rightly proud. In the meantime, let us hope that the Department of Defense comes to its senses and rights this ship.

Mike Berry is general counsel at First Liberty Institute, and a former active duty U.S. Marine Corps officer. To learn more, please visit http://www.firstliberty.org.

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Vaccine mandates: There is no COVID-19 virus exception to First Amendment Leavenworth Times - Leavenworth Times

From Zhou v. Breed, decided Friday by the Ninth Circuit (Judges John Owens and Michelle Friedland, and visiting Sixth Circuit Judge Danny Boggs):

Appellants allege that both [S.F. Mayor London] Breed and Clear Channel violated their First Amendment right to free speech. To the extent that Appellants argue that Breed, or any public official, violated their First Amendment rights simply by speaking critically of a billboard or calling for its removal, that theory is squarely foreclosed by precedent.

We have previously joined a "host of other circuits" in holding that "public officials may criticize practices that they would have no constitutional ability to regulate, so long as there is no actual or threatened imposition of government power or sanction." Am. Fam. Ass'n, Inc. v. City & County of San Francisco (9th Cir. 2002); see also id. ("[L]etters which encouraged but did not threaten or intimidate landowner to terminate lease with billboard owner did not violate billboard owner's First Amendment rights." (citing R.C. Maxwell Co. v. Borough of New Hope (3d Cir. 1984))). Appellants have not alleged that, in criticizing one of Appellants' billboards, Breed or any public official made any threats of government sanction against Zhou, AAFPAC, Clear Channel, Outfront Media, Inc. , or anyone.

Appellants' argument that their First Amendment rights were violated when Clear Channel, a private company, removed one of their billboards also fails. "A threshold requirement of any constitutional claim is the presence of state action." We "start with the presumption that private conduct does not constitute governmental action." Appellants do not allege any facts or put forward any plausible legal theory that would support treating Clear Channel as a state actor in this case.

The mere fact that Breed or other public officials criticized a billboard or called for its removal, without coercion or threat of government sanction, does not make that billboard's subsequent removal by a private party state action. See also Am. Mfrs. Mut. Ins. Co. v. Sullivan (1999) ("Action taken by private entities with the mere approval or acquiescence of the State is not state action."). Nor does the fact that companies that own billboards might be subject to some government regulations convert Clear Channel's decision to take down the billboard following public officials' criticism into state action. See Manhattan Cmty. Access Corp. v. Halleck (2019) ("Put simply, being regulated by the State does not make one a state actor."); Mathis v. Pac. Gas & Elec. Co. (9th Cir. 1989) ("[T]hat PG & E is a public utility subject to extensive state regulation without more, is insufficient to infuse its conduct with state action."). Because Appellants have failed to allege state action, the district court properly dismissed their First Amendment claim.

{Appellants argue that, even if their allegations could not support a coercion theory of state action or a regulation theory of state action when those theories are analyzed separately, their allegations could support a finding of state action if those theories were analyzed together. That argument also fails.}

The district court correctly struck, pursuant to California's anti-SLAPP statute, Appellants' claims against Breed for inducing breach of contract and intentional interference with a contractual relationship.

Appellants do not have a sufficient legal basis for either of their tort claims asserted against Breed. To succeed on their claim for inducing a breach of contract, Appellants must show that a contract "was in fact breached." Because Appellants cannot show that Clear Channel breached its contract [given that the contract allowed Clear Channel to terminate it], Appellants' claim against Breed for inducing a breach of contract necessarily fails.

To succeed on their claim for intentional interference with a contractual relationship, Appellants must show that Breed knew of Appellants' billboard contracts and that she engaged in "intentional acts designed to induce a breach or disruption of the contractual relationship." Other than threadbare recitals of some of the elements of this cause of action, Appellants do not allege that Breed knew of their contracts with Clear Channel or Outfront, or that any of Breed's actions were intentionally designed to disrupt Appellants' contractual relationships with those companies. Indeed, the only specific action Appellants allege that Breed took was speaking critically about one of the billboards during a television interview. It is not possible to infer from that allegation that Breed's aim was to interfere with any of Appellants' contractual relationships. Consequently, Appellants failed to satisfy their burden of showing a sufficient probability of success on the merits of their tort claims against Breed, and those claims were properly struck.

The state action analysis is indeed consistent with the circuit court precedents (see this post). The interference with contract analysis strikes me as odd: Surely someone criticizing a billboard must be aware that the billboard was up under a contract, and it at least seems plausible that criticizing a billboard is intended to cause a "disruption" of a contractual relationship (even if not a breach), by being intended to urge the billboard company to remove it. Nonetheless, the claim should fail for another reason: Under California law, intentional interference with business relations (short of intentional inducement of an actual breach) is generally actionable only if it's otherwise unlawful (e.g., involves a threat of violence or some other illegal conduct).

Here's the factual backstory about the content of the billboards, from the decision below, though the content isn't legally relevant:

October 2019, plaintiffs Ellen Lee Zhou and the Asian American Freedom Political Action Committee ("AAFPAC") (collectively, "plaintiffs") posted two billboard advertisements in support of Zhou's campaign for mayor of the City and County of San Francisco.

One of AAFPAC's billboards showed Breed driving a red bus with the text "Werewolves of London Tours" near cars with smashed windows. Additional text read, "Vote Nov. 5 for Super Mayor Ellen Lee Zhou!"

Clear Channel and OutFront posted the billboards in October 2019. Soon after, Breed and her allies "began a concerted effort" to pressure Clear Channel and OutFront to remove the billboards by denouncing them as offensive, racist, and divisive. Breed's campaign publicized an October 21, 2019 press conference in front of the OutFront billboard, although Breed did not attend it. Those present, including State Assemblyman David Chiu and members of the Board of Supervisors, denounced the content of the billboard and called for its removal. News outlets reported various individuals describing the contents of the billboard as racist, misogynistic, and sexist, and opining that it had no place in San Francisco. Breed gave a media interview in which she said, "'[The billboard] is hurtful, it's disrespectful and it is no place [sic], I think in San Francisco for that kind of divisiveness.'"

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No First Amendment Violation in Removal of Billboard After SF Mayor Had Criticized It - Reason

To the editor: This is in reference to Mike Mrowicki's commentary in the Brattleboro Reformer, dated Dec. 24-25, "Rights and responsibilities are inseparable."

Should you meet as a legislator governing body in Montpelier with the COVID in its present conditions, and may get worse in the months ahead? I say yes. You all should meet as if nothing is wrong. Why? First Amendment rights. A small amount of the population (the unvaccinated), wants their right not to have a shot of any kind. That's their right. What about yours? Do you have First Amendments rights, to be safe from danger that might kill you? The answer is yes. To solve this problem, you do not take away their rights to enter the Capitol buildings, you put rules in that must be kept by everyone that enters the buildings, that you have in place, even today, such as (1) you must wear a shirt; (2) you must wear shoes; (3) you do not carry or wear a gun'; (4) you do not disrupt this place of business at any time maybe even more rules that I cannot think of at this time. These rules, are they against your First Amendment rights? You see this in many stores of business, banks, etc., before you enter their business. Do they enter? No.

What about your rules, life and pursuit of happiness and safety? You elected leaders up north should add one more rule that all must live by, which is your First Amendment right: "Every one that enters any Capitol building must be vaccinated, for their protection from us, and us from you." After all, shouldn't you be protected from the "nonbeliever"? Don't worry about votes; 82 percent of the Vermont voters have received their shots. Someone must be right. Why do we all have to bow down to the minority? Stand up, be counted as a believer of the vaccination. Protect us. Get your shot.

Fred Yates

Westminster, Dec. 27

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Letter: Stand up for your First Amendment right as a believer of vaccination - Brattleboro Reformer

(NewsNation Now) The Boston police sergeant who is leading a protest against the citys vaccine mandate says that if fellow protestors called the citys mayor Hitler, then its their First Amendment right to do so.

When Marni Hughes, who was filling in for Joe Donlon, asked if Shana Cottone condoned that rhetoric from people she protests with, Cottone said she didnt hear those chants herself but wouldnt deny they happened.

We cant control peoples speech, Cottone said on NewsNations The Donlon Report on Monday. It may be ugly speech, but that is their their First Amendment right.

Cottone has gained attention for a video posted on YouTube in which she berates fellow Boston officers who are trying to enforce the vaccine mandate as she and a group of other women ate and drank at a restaurant after a protest.

She calls the officers a disgrace in the video.

On The Donlon Report, she accused Mayor Michelle Yu of going back on her word about how the mandate would be enforced.

The mayor said, Dont worry, the police arent going to be involved,' Cottone said. But thats proving to not be true on day one.

The officer said the manager was the one protesting her presence in the restaurant.

Cottone is on unpaid leave after she did not show proof of receiving at least one dose of the vaccine by this past weekend, the Boston Herald reports.

Boston Mayor Michelle Wu has defended her mandate, calling it based on the needs of our health care system to end this pandemic.

Cottone noted on The Donlon Report that the vaccinated are still getting sick from the omicron variant. She is pleading with Wu to please have a heart.

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Police officer: Calling mayor Hitler a 1st Amendment right - NewsNation Now

ExxonMobil is attempting to use an unusual Texas law to target and intimidate its critics, claiming that lawsuits against the company over its long history of downplaying and denying the climate crisis violate the US constitutions guarantees of free speech.

The USs largest oil firm is asking the Texas supreme court to allow it to use the law, known as rule 202, to pursue legal action against more than a dozen California municipal officials. Exxon claims that in filing lawsuits against the company over its role in the climate crisis, the officials are orchestrating a conspiracy against the firms first amendment rights.

The oil giant also makes the curious claim that legal action in the California courts is an infringement of the sovereignty of Texas, where the company is headquartered.

Eight California cities and counties have accused Exxon and other oil firms of breaking state laws by misrepresenting and burying evidence, including from its own scientists, of the threat posed by rising temperatures. The municipalities are seeking billions of dollars in compensation for damage caused by wildfires, flooding and other extreme weather events, and to meet the cost of building new infrastructure to prepare for the consequences of rising global temperatures.

Rule 202 in effect allows corporations to go on a fishing expedition for incriminating evidence. They are able to question individuals under oath and demand access to documents even before any legal action is filed against them.

Exxon wants to use the provision to force the California officials to travel to Texas to be questioned by the firms lawyers about what the company describes as lawfare the misuse of the legal system for political ends.

Exxon claims in a petition to the Texas supreme court that it is entitled to question the officials in order to collect evidence of potential violations of ExxonMobils rights in Texas to exercise its first amendment privileges to say what it likes about climate science.

The potential defendants lawfare is aimed at chilling the speech of not just ExxonMobil, but of other prominent members of the Texas energy sector on issues of public debate, in this case, climate change, the company claims in its petition.

The oil giants critics say Exxons attempt to use claims of free speech to curtail the first amendment rights of others follows a pattern of harassment toward those who challenge the companys claims about the climate crisis.

Patrick Parenteau, a law professor and former director of the Environmental Law Center at Vermont law school, has described the companys move as intimidation intended to make it cost a lot and be painful to take on Exxon whether or not the company wins its case.

In a highly unusual move, Texass governor, Greg Abbott, has written to the all-Republican court half of whose members he appointed in support of Exxon. He accused the California litigants of attempting to suppress the speech of eighteen Texas-based energy companies on the subject of climate and energy policies.

When out-of-state officials try to project their power across our border, as respondents have done by broadly targeting the speech of an industry crucial to Texas, they cannot use personal jurisdiction to scamper out of our courts and retreat across state lines, Abbott wrote.

In backing its claim, Exxons petition to the Texas supreme court gives the example of the Oakland city attorney, Barbara Parker, who in 2017 issued a press release seeking to stifle the speech of the Texas energy sector or, as she likes to refer to it, BIG OIL.

The press release said: It is past time to debate or question the reality of global warming Just like BIG TOBACCO, BIG OIL knew the truth long ago and peddled misinformation to con their customers and the American public.

The company also names the then San Francisco city attorney, Dennis Herrera, because he accused fossil fuel companies of launching a disinformation campaign to deny and discredit the reality of global heating, and pledged to hold the companies responsible to account.

Exxon has, in addition, targeted an environmental lawyer in Boston, Matthew Pawa, who represents some of the California municipalities. The firm describes him as an outspoken advocate of misusing government power to limit free speech and alleges that Pawa recruited the California cities and counties to sue Exxon.

Those lawsuits are an affront to the first amendment, the company claims.

Naomi Oreskes, a Harvard professor and co-author of Merchants of Doubt: How a Handful of Scientists Obscured the Truth on Issues from Tobacco Smoke to Global Warming, said Exxon had a long history of attempting to bully its critics into silence.

Now that the arguments have moved into the legal sphere, this feels to me like an extension of the sort of harassment, bullying and intimidation that weve seen in the scientific sphere for the last two decades, she said.

Oreskes said that the legal strategy is also part of a broader public relations campaign to paint the company as a victim of radical environmentalists and opportunistic politicians when Exxon argues that it should be heralded for its efforts to combat the climate crisis.

Exxon Mobil has for a long time now tried to make themselves out to be the victim, as if somehow theyre the innocent party here, she said.

The Texas supreme court is considering the case after a lower court backed Exxons attempts to use rule 202 against the California officials. The ruling was later overturned on appeal.

The appeal court sympathised with Exxon by acknowledging an impulse to safeguard an industry that is vital to Texass economic well-being and saying that lawfare is an ugly tool by which to seek the environmental policy changes pursued by California municipalities. But the appeal court said the defendants did not have sufficient direct connection to Texas for the case to be heard in the state.

Exxon has tried to head off climate litigation before with lawsuits claiming that the attorney generals of Massachusetts and New York were violating the companys rights by investigating it. Those moves were blocked by the Massachusetts supreme court and by a federal court.

If the Texas supreme court allows its rule 202 bid to proceed, Exxon might expect a more sympathetic hearing for its claims in a state court system that has shown deference to big oil.

Exxon is facing a barrage of other lawsuits across the US. A number accuse the company and other fossil fuel firms of breaching consumer protection laws by propagating misinformation about climate science.

Oreskes said Exxon went further than most other oil companies in seeking to hide the evidence of its own scientists collected about global heating and in running a disinformation campaign.

Theyre pushing their freedom of speech as an issue because more than any other company, its been proven by people like me and others that they have a track record of promoting half truths, misrepresentations and in some cases outright lies in the public sphere, she said.

This is so well documented that unless they can come up with some strategy to defend it, theyre in potentially pretty serious trouble.

This story is published as part of Covering Climate Now, a global collaboration of news outlets strengthening coverage of the climate story

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How Exxon is using an unusual law to intimidate critics over its climate denial - The Guardian