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RELIST WATCH ByJohn Elwood on Jan 12, 2022 at 3:35 pm

The Relist Watch column examines cert petitions that the Supreme Court has relisted for its upcoming conference. A short explanation of relists is available here.

At this Fridays conference, the Supreme Court will vote to grant the last cases that will be argued this term (barring expedited briefing on some emergency matter). The court has an unusual number of relists this week, including an unusual number of cases that would be blockbusters if the court decides to take them. There are so many relists 17 cases, and thats if you only count a cluster of 33 (!) Oklahoma cases as a single case that I have to be extremely summary. Its like the long conference in January.

I could reach the limit of our Twitter-shortened attention spans just talking about relists that explicitly ask the Supreme Court to overrule its precedents. There are a pair of cases asking the court to invalidate Harvards and the University of North Carolinas affirmative action programs, and in the process overrule Grutter v. Bollinger, which upheld diversity-based affirmative action programs. The cases are Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 20-1199, and Students for Fair Admissions, Inc. v. University of North Carolina, 21-707. The court earlier asked for the U.S. solicitor general to weigh in on the Harvard case; she recommended that the court deny review, saying that the challengers seek[] to relitigate case-specific factual disputes that both lower courts resolved against them and that the case would be a poor vehicle for reconsidering Grutter. Well see if the court is persuaded.

Then theres 303 Creative LLC v. Elenis, 21-476, presenting a recurring question the court first confronted in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, about whether an artist (here, a website designer) can be compelled to perform work celebrating a same-sex wedding that is inconsistent with their sincerely held religious beliefs. The case also presents the question whether a public-accommodation law that authorizes secular but not religious exemptions is generally applicable underEmployment Division v. Smith, and if so, whether the Supreme Court should overruleSmith. (The court faced but did not decide the issue of whether to overrule Smith in last terms Fulton v. City of Philadelphia, Pennsylvania.)

Two terms ago, the Supreme Court held by a 5-4 vote in McGirt v. Oklahoma that Congress had not clearly disestablished a Creek Nation reservation covering much of eastern Oklahoma, and thus the area remained Native American territory for the purposes of a federal criminal law, eliminating the states ability to prosecute crimes there. With the death of Justice Ruth Bader Ginsburg, who provided a necessary vote to the McGirt majority, and the confirmation of her replacement, Justice Amy Coney Barrett, the state is now asking the court to reverse itself. The state has 33 petitions pending in criminal cases asking that McGirt be overruled so many petitions they have two petitions just involving respondents named Jones, and another two with respondents named Martin. The state has designated Oklahoma v. Castro-Huerta, 21-429, the lead petition, but if the court decides to grant review, it could choose a different vehicle. If the court grants review, it may want to ask the parties to brief the additional question whether Oklahoma was required to file an environmental impact statement in view of the sheer tonnage of paper filings.

Moving on to potential blockbusters that dont explicitly call on the court to overrule precedent. Sackett v. Environmental Protection Agency, 21-454, is a long-running Clean Water Act dispute that has already been the subject of one major Supreme Court decision. The Sacketts are a husband and wife who are challenging the governments assertion of CWA authority over their home. They invoke Rapanos v. United States in which a splintered majority of the Supreme Court held that theCWA does not regulate all wetlands. Justice Antonin Scalia, writing for a four-justice plurality, concluded that only wetlands that have a continuous surface water connection to regulated waters may themselves be regulated under the act. Justice Anthony Kennedy concurred only in the judgment, applying a more fact-intensive (critics would say vague) significant nexus test. The Sacketts argue that the court should adopt the pluralitys narrower test as the governing standard.

There are also four cases challenging the constitutionality of the Indian Child Welfare Act of 1978. Congress passed ICWA to respond to concerns that state child-welfare practices were causing large numbers of Native American children to be inappropriately removed from their families and tribes and placed with non-Native foster families or adoptive parents. ICWA established minimum federal standards for most child-custody proceedings involving Native American children. The en banc U.S. Court of Appeals for the 5th Circuitstruck down some provisions of ICWA as unconstitutional. According to the 5th Circuit, some provisions violate the 10th Amendment because they impermissibly commandeer the states. Those provisions, it concluded, include a requirement that state agencies bear the cost and burden of providing expert testimony to support placing Native children in foster care, a requirement that state agencies provide remedial services to Native families, and a requirement that state agencies maintain certain child-placement records.

The 5th Circuit also affirmed the district courts judgment that ICWAs preference for adoptive placement with other Indian families and Indian foster home[s] violates the equal-protection component of the Fifth Amendment. The 5th Circuit upheld other provisions of the act. The court has relisted a total of four petitions, two filed by the federal government and a group of Native American tribes seeking to revisit 5th Circuit holdings invalidating provisions, and two filed by the state of Texas and private challengers seeking to overturn parts of the 5th Circuit decision upholding other ICWA provisions. The petitions are Haaland v. Brackeen, 21-376, Cherokee Nation v. Brackeen, 21-377, Texas v. Haaland, 21-378, and Brackeen v. Haaland, 21-380.

In January 2019, the Supreme Court denied apetition for certiorarifiled by a football coach at a public high school in Washington state who claimed that he lost his job because he prayed on the field after games. At that time, four justices Samuel Alito, Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh notedthat they concurred in the decision to deny review because the factual record was too undeveloped to grant preliminary relief to the coach, emphasizing that they did not necessarily agree with the decision (much less the opinion) below. Since then, the district court and U.S. Court of Appeals for the 9th Circuit have again rejected the coachs claims. InKennedy v. Bremerton School District, 21-418, Coach Kennedy is back, asking the justices to review whether his conduct is private and protected by the First Amendment.

California has enacted a number of laws over the years that regulate the sale of items ranging from foie gras to fuel based on the method of production that the state believes is too carbon-intensive. Challengers regularly argue that such laws violate so-called dormant commerce clause principles by discriminating against (or seeking to alter) disfavored out-of-state production methods. A number of challenges to such laws have reached the court over the years, but National Pork Producers Council v. Ross, 21-468, is the first one since 2014 (the foie gras case) that I can recall being relisted. California bans the sale of pork in the state unless the sow from which it was derived was housed with 24 square feet of space and in conditions that allow the sow to turn around freely without touching her enclosure. Challengers argue that almost no farms satisfy those standards, and farmers almost universally keep sows in individual pens that do not satisfy those standards during the period between weaning and confirmation of pregnancy, for animal health and business reasons. Challengers argue that the law is impermissibly extraterritorial because virtually all the pork consumed in California is raised outside the state.

With that, we have to go into full Relist Watch Select mode if we are going to have any hope of ever getting through all these relists. The remaining relists raise the following issues. Each of them is fascinating on its own terms; I give them brief treatment only because there is such an embarrassment of riches this week.

Thats all for this week. Until next time, stay safe!

Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 20-1199Issues: (1) Whether the Supreme Court should overruleGrutter v. Bollingerand hold that institutions of higher education cannot use race as a factor in admissions; and (2) whether Harvard College is violatingTitle VIof the Civil Rights Act by penalizing Asian-American applicants, engaging in racial balancing, overemphasizing race and rejecting workable race-neutral alternatives.CVSG: 12/8/2021(relisted after the Jan. 7 conference)

Students for Fair Admissions, Inc. v. University of North Carolina, 21-707Issues: (1) Whether the Supreme Court should overruleGrutter v. Bollingerand hold that institutions of higher education cannot use race as a factor in admissions; and (2) whether a university can reject a race-neutral alternative because it would change the composition of the student body, without proving that the alternative would cause a dramatic sacrifice in academic quality or the educational benefits of overall student-body diversity.(relisted after the Jan. 7 conference)

Wisconsin v. Jensen, 21-210Issues: (1) Whether a persons statement expressing fear about a possible future crime is testimonial under the Sixth Amendments confrontation clause; and (2) whether, when a person reports ongoing psychological domestic abuse and expresses fear about future physical harm, the persons statement aimed at ending an ongoing emergency is non-testimonial.(relisted after the Jan. 7 conference)

George v. McDonough, 21-234Issue: Whether, when the Department of Veterans Affairs denies a veterans claim for benefits in reliance on an agency interpretation that is later deemed invalid under the plain text of the statutory provisions in effect at the time of the denial, that is the kind of clear and unmistakable error that the veteran may invoke to challenge VAs decision.(relisted after the Jan. 7 conference)

Haaland v. Brackeen, 21-376Issues: (1) Whether various provisions of the Indian Child Welfare Act of 1978 namely, the minimum standards ofSection 1912(a), (d), (e), and (f); the placement-preference provisions ofSection 1915(a) and (b); and the recordkeeping provisions ofSections 1915(e)and1951(a) violate the anticommandeering doctrine of the 10th Amendment; (2) whether the individual plaintiffs have Article III standing to challenge ICWAs placement preferences for other Indian families and for Indian foster home[s]; and (3) whether Section 1915(a)(3) and (b)(iii) are rationally related to legitimate governmental interests and therefore consistent with equal protection.(relisted after the Jan. 7 conference)

Cherokee Nation v. Brackeen, 21-377Issues: (1) Whether the en banc U.S. Court of Appeals for the 5th Circuit erred by invalidating six sets of Indian Child Welfare Act provisions 25 U.S.C. 1912(a), (d), (e)-(f),1915(a)-(b), (e), and1951(a) as impermissibly commandeering states (including via its equally divided affirmance); (2) whether the en banc 5th Circuit erred by reaching the merits of the plaintiffs claims that ICWAs placement preferences violate equal protection; and (3) whether the en banc 5th Circuit erred by affirming (via an equally divided court) the district courts judgment invalidating two of ICWAs placement preferences, 25 U.S.C. 1915(a)(3), (b)(iii), as failing to satisfy the rational-basis standard ofMorton v. Mancari.(relisted after the Jan. 7 conference)

Texas v. Haaland, 21-378Issues: (1) Whether Congress has the power under the Indian commerce clause or otherwise to enact laws governing state child-custody proceedings merely because the child is or may be an Indian; (2) whether the Indian classifications used in theIndian Child Welfare Actand its implementing regulations violate the Fifth Amendments equal-protection guarantee; (3) whether ICWA and its implementing regulations violate the anticommandeering doctrine by requiring states to implement Congresss child-custody regime; and (4) whether ICWA and its implementing regulations violate the nondelegation doctrine by allowing individual tribes to alter the placement preferences enacted by Congress.(relisted after the Jan. 7 conference)

Brackeen v. Haaland, 21-380Issues: (1) Whether theIndian Child Welfare Act of 1978s placement preferences which disfavor non-Indian adoptive families in child-placement proceedings involving an Indian child and thereby disadvantage those children discriminate on the basis of race in violation of the U.S. Constitution; and (2) whether ICWAs placement preferences exceed Congresss Article I authority by invading the arena of child placement the virtually exclusive province of the States, as stated inSosna v. Iowa and otherwise commandeering state courts and state agencies to carry out a federal child-placement program.(relisted after the Jan. 7 conference)

Kennedy v. Bremerton School District, 21-418Issues: (1) Whether a public-school employee who says a brief, quiet prayer by himself while at school and visible to students is engaged in government speech that lacks any First Amendment protection; and (2) whether, assuming that such religious expression is private and protected by the free speech and free exercise clauses, the establishment clause nevertheless compels public schools to prohibit it.(relisted after the Jan. 7 conference)

Nance v. Ward, 21-439Issues: (1) Whether an inmates as-applied method-of-execution challenge must be raised in a habeas petition instead of through a42 U.S.C. 1983action if the inmate pleads an alternative method of execution not currently authorized by state law; and (2) whether, if such a challenge must be raised in habeas, it constitutes a successive petition when the challenge would not have been ripe at the time of the inmates first habeas petition.(relisted after the Jan. 7 conference)

Sackett v. Environmental Protection Agency, 21-454Issue: WhetherRapanos v. United States in which the Supreme Court held that theClean Water Actdoes not regulate all wetlands, but without a majority opinion explaining why that is so should be revisited to adopt the pluralitys test for wetlands jurisdiction under the Clean Water Act, in which only those wetlands that have a continuous surface water connection to regulated waters may themselves be regulated.(relisted after the Jan. 7 conference)

National Pork Producers Council v. Ross, 21-468Issues: (1) Whether allegations that a state law has dramatic economic effects largely outside of the state and requires pervasive changes to an integrated nationwide industry state a violation of the dormant commerce clause, or whether the extraterritoriality principle described in the Supreme Courts decisions is now a dead letter; and (2) whether such allegations, concerning a law that is based solely on preferences regarding out-of-state housing of farm animals, state a claim underPike v. Bruce Church, Inc.(relisted after the Jan. 7 conference)

303 Creative LLC v. Elenis, 21-476Issues: (1) Whether applying a public-accommodation law to compel an artist to speak or stay silent, contrary to the artists sincerely held religious beliefs, violates the free speech or free exercise clauses of the First Amendment; and (2) whether a public-accommodation law that authorizes secular but not religious exemptions is generally applicable underEmployment Division v. Smith, and if so, whether the Supreme Court should overruleSmith.(relisted after the Jan. 7 conference)

Vega v. Tekoh, 21-499Issue: Whether a plaintiff may state a claim for relief against a law enforcement officer under42 U.S.C. 1983based simply on an officers failure to provide the warnings prescribed inMiranda v. Arizona.(relisted after the Jan. 7 conference)

Shoop v. Twyford, 21-511Issues: (1) Whether federal courts may use the All Writs Act to order the transportation of state prisoners for reasons not enumerated in28 U.S.C. 2241(c); and (2) whether, before a court grants an order allowing a habeas petitioner to develop new evidence, it must determine whether the evidence could aid the petitioner in proving his entitlement to habeas relief, and whether the evidence may permissibly be considered by a habeas court.(relisted after the Jan. 7 conference)

Love v. Texas, 21-5050Issues: (1) Whether Texas Court of Criminal Appeals, the only court of last resort reviewing direct appeals in death penalty cases, has decided an important federal question concerning a racially biased juror being allowed on a capital death penalty jury in violation of petitioner Kristopher Loves rights under the Sixth and 14th Amendments to the United States Constitution; and (2) whether Texas Court of Criminal Appeals, the only court of last resort reviewing direct appeals in death penalty cases, has decided an important federal question concerning a racially biased juror in a way that conflicts with relevant decisions of the Supreme Court in violation of Loves rights under the Sixth and 14th Amendments to the United States Constitution.(relisted after the Jan. 7 conference)

Oklahoma v. Brown, 21-251; Oklahoma v. Kepler, 21-252; Oklahoma v. Hathcoat, 21-253; Oklahoma v. Mitchell, 21-254; Oklahoma v. Jackson, 21-255; Oklahoma v. Starr, 21-257; Oklahoma v. Davis, 21-258; Oklahoma v. Howell, 21-259; Oklahoma v. Bain, 21-319; Oklahoma v. Perry, 21-320; Oklahoma v. Johnson, 21-321; Oklahoma v. Harjo, 21-322; Oklahoma v. Spears, 21-323; Oklahoma v. Grayson, 21-324; Oklahoma v. Janson, 21-325; Oklahoma v. Sizemore, 21-326; Oklahoma v. Ball, 21-327; Oklahoma v. Epperson, 21-369; Oklahoma v. Stewart, 21-370; Oklahoma v. Jones, 21-371 ; Oklahoma v. Cooper, 21-372; Oklahoma v. Beck, 21-373; Oklahoma v. Jones, 21-451; Oklahoma v. McCombs, 21-484; Oklahoma v. McDaniel, 21-485; Oklahoma v. Shriver, 21-486; Oklahoma v. Martin, 21-487; Oklahoma v. Fox, 21-488; Oklahoma v. Cottingham, 21-502; Oklahoma v. Martin, 21-608Issue: Whether McGirt v. Oklahoma should be overruled.(relisted after the Jan. 7 conference)

Oklahoma v. Williams, 21-265; Oklahoma v. Mize, 21-274; Oklahoma v. Castro-Huerta, 21-429Issues: (1) Whether a state has authority to prosecute non-Indians who commit crimes against Indians in Indian country; and (2) whether McGirt v. Oklahoma should be overruled.(relisted after the Jan. 7 conference)

Knight v. Pennsylvania, 20-7805Issue: Whether a state may require a defendant to present an IQ score of 75 or below that was documented prior to age 18 to have his intellectual disability claim considered as a basis to disqualify him from the death penalty, when this requirement is contrary to clinical standards for diagnosis and contrary to multiple decisions where the Supreme Court has granted relief to petitioners who lacked any such documentation.(relisted after the Oct. 29, Nov. 5, Nov. 12, Nov. 19, Dec. 3, Dec. 10, and Jan. 7 conferences)

Holcombe v. Florida, 21-53Issues: (1) Whether a criminal defendant establishes an actual conflict of interest that adversely affects counsels representation when the attorney engages in joint and dual representation i.e., simultaneously representing both the defendant and a key prosecution witness during a trial; (2) whether the presumed prejudice conflict of interest standard applies when the prosecutor (rather than defense counsel) puts the trial judge on notice at the beginning of a trial of defense counsels conflict of interest a conflict which is described by the prosecutor as not waivable and the judge thereafter fails to inquire into the nature and scope of the conflict.(relisted after the Oct. 29, Nov. 5, Nov. 12, Nov. 19, Dec. 3, Dec. 10, and Jan. 7 conferences)

Trustees of the New Life in Christ Church v. City of Fredericksburg, 21-164Issues: (1) Whether civil authorities violate the First Amendment when they engage in their own interpretation of church doctrine to overrule a churchs determination that a particular official is a minister and, if so, whether summary reversal is appropriate; (2) whether, in the alternative, the Supreme Court should grant, vacate, and remand in light ofFulton v. City of Philadelphia, because Virginia has enacted a system of individual exemptions to its property tax law, and the city may not refuse to extend that [exemption] system to [the Church] without compelling reason.(rescheduled before the Oct. 8 and Oct. 15 conferences; relisted after the Oct. 29, Nov. 5, Nov. 12, Nov. 19, Dec. 3, Dec. 10, and Jan. 7 conferences)

Arrow Highway Steel, Inc. v. Dubin, 21-27Issues: (1) Whether the dormant commerce clause may be used to invalidate the application of a states neutral, non-discriminatory tolling statute to defeat the enforcement of a former residents stipulated judgment where there is no showing of any burden on or discrimination against interstate commerce; and (2) whether the dormant commerce clause applies to a state statute with no intended or demonstrated effect on interstate commerce.(relisted after the Dec. 3, Dec. 10, and Jan 7 conferences)

See the original post here:
Blockbuster watch: Affirmative action, same-sex weddings, and other big relists - SCOTUSblog

HAMPTON It's perfectly legal to erect a giant "F--- OFF" banner on the front of your house and currently there is nothing the town government can legally do about it.

"I think it's ridiculous," said Selectman James Waddell, who found out the town's hands were tied in regulating offensive language on signs after receiving complaints about one on Mill Road.

"When I was a kid and you (used that language) someone would smack you. It wouldn't be out there long. But times have changed."

The town's Planning Board is putting forth a zoning amendment to voters March 8 to strike what has been deemed non-enforceable language in the town's sign ordinance prohibiting profanity and explicit content.

However, they are seeking to add wording that limits the owners of residential properties especially the few who display offensive content from displaying banners to two occasions per year, and for no more than 14 consecutivedays per occasion.

A banner, according to the town's zoning ordinance, is defined as a sign of lightweight fabric or similar material that is mounted to a pole or a building. National flags, state or municipal flags, according to the ordinance, are not considered banners.

Planning Board Chairman Tracy Emerick said the impetus behind the amendment was a "F--- OFF" banner put up on a home on Mill Road in 2020 in protest of a new development in the neighborhood. The sign was placed under another banner that read, "Thank God for the First Amendment.

Previous story: Hampton mans F--- OFF yard sign riles neighbors

"There was a lot of heat taken at the town hall about this particular banner," Emerick said.

Selectmen received a number of complaints from neighbors upset children had to walk by it, as well as from motorists who traveleddown the road and saw it.

And they were upset the town leaders were not doing anything about it.

While the town's current sign ordinance prohibits words or pictures that are "obscene, pornographic or immoral character," Emerick said it's considered unenforceable.

"The truth of the matter is that it's a First Amendment right," he said. "The right to free speech is the right to free speech."

Emerick said Town PlannerJasonBachand requested the board remove the language regarding content from the sign ordinance on the advice of the town counsel.

He cited two U.S. Supreme court actions: Reed v. Town of Gilbert (2015), which involved a municipality restricting content-based messaging in signage, and Iancu v. Brunetti (2019), which involved prohibiting the use of a trademark for FUCT clothing line"that was considered immoral and obscene.

Both were deemed unconstitutional in violation of the First Amendment by the court.

Bachand told the Planning Board at a recent meeting the wording could leave the town open to lawsuits, including from a resident challenging why they are not enforcing it.

"We can't do anything on what people put on a banner," Emerick said. "All we can do is try and control the use of banners."

Initially, the first draft of the zoning amendment banned all banners in residential zones.

Emerick said the problem was what if someone wanted to put up a "Welcome Home" sign for a soldier returning from overseas or a "Congratulations" one for a birthday or graduation.

"That's where the two and for only 14 days come from," Emerick said. "We didn't want to restrict positive banners and most positive banners have an event and a timeframe."

Emerick said enforcement, if the amendment is approved, would be done by the town's building department.

The "F--- Off" banner on Mill Road that spurred the zoning amendment is no longer on display.

While selectmen sent a letter to the homeowner requestinghe take down the sign, Waddell said he doesn't believe that did the trick as it was up for months after the request was made.

"I'm not sure why the sign went down," he said. "I don't know if he felt his purpose was served or not."

The sign regarding the First Amendment remains proudly displayed on the home as well as a new small banner of a gnome giving what appears to be the middle finger.

Waddell said he supports the proposed zoning amendment because it gives the town an enforcement tool if future cases arise.

"It's a way to control signs because signs can get totally out of control," he said.

The zoning amendment only pertains to banners and not other signs defined in the ordinance like political signs.

Waddell said he was recently asked what the board could do about people holding up offensive political signs in downtown Hampton.Signs that have led to complaints include "Let's go Brandon" signs (an anti-President Joe Biden slogan) as well as a flag that directly states "(Expletive) Biden," with the swear word made out of guns.

Waddell said again, it's protected by free speech. According to the ACLU, "generally, all types of expression are constitutionally protected in traditional public forums such as streets, sidewalks and parks" and a permit is not required to picket or hold up signs.

Waddell said he's had people ask him if selectmen could restrict the hourspeople can hold signs downtown, "or type of signs they can hold."

"It's a slippery slope," Waddell said. "It's a shame that we even have to think about that."

See the rest here:
Perfectly legal: 'F--- OFF' sign in Hampton irks neighbors, could lead to zoning change - Seacoastonline.com

Marilou Rickert did not set Washington politics on fire when she ran for the Legislature in 2003.

Rickert, an attorney and Green Party candidate who tried to unseat long-term incumbent Tim Sheldon in the West Sides 35th district, lost by a huge margin, with Sheldon gathering about 80% of the vote.

Rickert nevertheless holds an important legacy in Washington politics as a free-speech figure. It was Rickert who was charged with violating state law for telling a falsehood about Sheldon in her campaign she incorrectly characterized a vote he took on a flyer and it was her case that the state Supreme Court used to throw out that law.

A political candidate making knowingly false and reckless statements, the court ruled, is constitutionally protected speech.

The notion that the government, rather than the people, may be the final arbiter of truth in political debate is fundamentally at odds with the First Amendment, the courts 5-4 majority opinion read.

Now the governor is looking to take on the tsunami of election lies that is animating a large part of the conversation on the political right and taking a run directly at the boundaries established in Rickert v. Washington.

Gov. Jay Inslee is supporting legislation that would make it a crime to tell lies about election results. The legislation is still being drafted, but his notion is to make it a gross misdemeanor, punishable by up to a year in jail and $5,000 in fines, for candidates to tell lies about elections with the knowledge that such lies can incite violence.

It should not be legal in the state of Washington for elected officials or candidates for office to willfully lie about these election results, Inslee said

In laying out his reasoning, Inslee is right about a whole lot. He is 100% correct that too many elected officials have been lying about elections just pulling blatantly idiotic nonsense out of thin air. Hes correct that these lies have fueled dangerous, destructive violence, and hes accurate in identifying the rotting head of that stinky fish as the former president, who seems unable to speak without lying.

Hes right that the election lies are a threat to our democracy, and that the lying is not limited to national elections. If you think the Trump won lies are a steaming pile of horse flop, try Culp won. This is an actual thing, too dumb to be believed, and yet it is being advanced by some Republicans right now, including Joe Kent, a Trumpworld favorite trying to unseat Rep. Jaime Herrera Beutler. Kent calls Loren Culp the real governor of Washington.

All of these lies, and the large numbers of people who swallow them, are a huge problem for our country. But this proposal is no answer. For constitutional, legal, practical and political reasons, its a bad idea.

Free speech is such a fundamental right that there is a significant degree of protection for some false speech as in the Rickerts case as well as important barriers to the state acting as the arbiter for what speech is accurate or acceptable.

Its not as if lying is completely protected. Perjury, fraud and libel are instances in which false speech is not protected by the First Amendment. But the Supreme Court has often elevated freedom over accuracy or honesty, especially in political speech. It has struck down laws attempting to prohibit people from lying about their military service (the so-called Stolen Valor Act) and protected the press from libel claims when it publishes incorrect information about public figures, unless such publication is done with actual malice (the landmark Times v. Sullivan case).

Thats to name just two cases. The constitution and a long history of case law establishes the freedom to say certain false things as an important indicator of true freedom. It is no kind of freedom at all, in other words, to say only that which is governmentally vetted.

At a time of rampant, destructive dishonesty in politics, its not hard to see the appeal of Inslees proposal. Journalists and online platforms have been challenged with an ever-greater need to act as editors and gatekeepers against the dissemination of lies; this is not, as people often claim, a violation of the First Amendment. Journalists and online platforms, as opposed to the government, have a responsibility to edit, vet, fact-check, challenge and be discerning about who they amplify.

That is the marketplace of ideas, and it is theoretically the way that bad speech is combatted. Ideally, the existence of ample, robust volumes of accurate, factual information will overwhelm false ones. Im not sure this is true anymore, if it ever was. The edifice of media organizations and online platforms that sustain lies has grown so large that people can simply climb inside it and never learn an accurate fact.

Still, that doesnt mean its time to begin empowering government to prosecute political speech. There are legal obstacles, including the difficulty of proving a statement is a lie rather than simply incorrect, as well as the challenge of establishing, beyond reasonable doubt, an intention to incite violence.

And there is an absolute certainty of a spectacular backfire. Think of the Culp won crowd. Imagine their delight at being prosecuted for telling this lie one based on the premise that the government is conspiring to hide the truth from people. Imagine their delight at being handed this badge of honor, and how good it will be for their ability to raise money from the millionaires who support the election lies.

Inslees right about the sickness, wrong about the cure. The Rickert case differs from Inslees proposal in key respects. As the governor noted, Rickert dealt with falsehoods told by one candidate against another; his proposal would go after lies about the electoral system generally, and those intended to incite violence.

Its hard to imagine, though, that the state Supreme Court would not come to the same conclusion with this proposal as it did in Rickert: government censorship is not a constitutionally permitted remedy.

Here is the original post:
Shawn Vestal: Inslee's right about the disease, but wrong about the cure - The Spokesman Review

Hours into a marathon oral argument on Jan. 10, Judge Amit Mehta of the U.S. District Court for the District of Columbia observed that if there is one thing this hearing has shown it's that this is not an easy case. For nearly five hours Judge Mehta heard arguments about whether former President Donald Trump, Rep. Mo Brooks, Rudy Giuliani and others could be held civilly liable for their role in the Jan. 6 Capitol insurrection. The main lawsuits, brought by Reps. Bennie Thompson and Eric Swalwell, allege violations of 42 U.S.C. 1985(1), a Reconstruction-era statute that created civil liability for conspiracies to prevent public officials from holding any office or discharging any duties.

Addressing issues common to the three lawsuits, Judge Mehta wrestled with formidable defenses raised by Trump and his co-defendants: chiefly that Trump and Books are immune from civil liability for actions taken as part of their official duties, and that the defendants statements leading up to the siege of the Capitol could not satisfy the elements of conspiracy, especially to the extent that the statements were protected speech under the First Amendment.

Immunity

Trump lawyer Jesse Binnall argued for an expansive, highly formalistic vision of presidential immunity, relying on the Supreme Courts ruling in Nixon v. Fitzgerald that presidents are entitled to absolute immunity from civil liability for actions while in office that fall within the outer perimeter of their official responsibility. The crux of Binnalls argument was that the court must entirely ignore the content of Trumps speech on Jan. 6his remarks at the Ellipse and on Twitter over the course of the dayand look only at the presidents conduct to analyze whether he was acting in his official capacity. Because Trump was addressing the American people, Binnall argued, he was acting within his official duties as president and must enjoy immunity, especially since the subject of his speech, electoral integrity, is a matter of immense public concern.

Judge Mehta was skeptical of this all-encompassing vision of the presidents official duties, which potentially would make the president immune from civil liability anytime he opens his mouth. Judge Mehta pushed Binnall on whether there is anything that a president could do or say while in officefor example, as part of a campaignthat would not be immune from liability under his expansive theory of presidential immunity. Binnall said that he could not name an example of anything the president could say that would not fall within his official duties under this theory, but that perhaps signing a lease on a campaign office would not fall within his responsibilities as president.

But if Binnall failed to give Judge Mehta a reasonable standard for the scope of presidential immunity, the plaintiffs struggled to offer one that would withhold immunity in this case while nevertheless being consistent with precedent. The plaintiffs argued that Trump should not enjoy immunity because fomenting an insurrection against Congress was clearly unconstitutional and thus outside his official duties. But as Judge Mehta noted, Fitzgerald held that presidential immunity did not depend on the legality of the presidents action. The plaintiffs were left to argue that Trumps conduct surrounding Jan. 6 was so outrageous that it was clearly beyond the scope of his presidential responsibilities. But where exactly to draw that line remained unclear.

The question of the scope of official duties was also at the center of Brooks claim that he should be immune from liability under the Westfall Act, which requires the government to act as the defendant when federal employees are sued for tort liability for official actions. The Department of Justice joined the plaintiffs in arguing that Brookswho spoke before Trump on Jan. 6 and declared that Todays the day American patriots start taking down names and kicking asswas campaigning and therefore acting outside the scope of his official duties; as a result, Brooks should not be immune from civil liability. But Brooks, who argued on his own behalf, emphasized that his motivation in speaking at the Jan. 6 rally was not simply to support Republican candidates in future elections, but also to convince his fellow congresspeople to vote against the certification of the electoral college votes.

First Amendment

The other major hurdle for the plaintiffs is the First Amendment, which generally protects the sort of political speech that Trump, Brooks and the other rally speakers engaged in (and to that extent cannot serve as the predicate for the plaintiffs conspiracy charges). The plaintiffs emphasized that the defendants could be held liable under even the highly speech-protective standard of Brandenburg v. Ohio, which permits liability for advocacy of the use of force or of law except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

In a heated exchange, Binnall, Trumps lawyer, repeatedly pointed to several inflammatory statements that the Democratic plaintiffs had themselves previously made, arguing that if Trumps language was found to be incitement to violence here, but similar language used by others elsewhere was not, the court would be failing to apply the First Amendment equally to Democrats and Republicans. Judge Mehta sharply rebuked Binnall for engaging in whataboutism and for suggesting that he was judging Trump and his co-defendants speech more harshly because of their party.

Like the discussion of presidential immunity, the First Amendment portion of the argument was inconclusive. On the one hand, Trumps words did not explicitly call for violence and were on their face far less inflammatory than what the Supreme Court upheld in Brandenburg and in many cases since. On the other hand, the broader context of Trumps speech, from his months-long campaign to discredit the election to his failure to act after the attack on the Capitol began, suggests, as Mehta noted, that Trumps speech went beyond ordinary political rhetoric, even if it was not the sort of speech that typically qualifies as conspiracy to commit violence.

Ultimately, and despite hours of questioning, Judge Mehta did not tip his hand as to how he will rule on the many complex legal issues that the lawsuits raise. But given the high political and legal stakes, its unlikely that Judge Mehtas decision will be the last word. The parties will almost certainly appeal any outcome to the U.S. Court of Appeals for the D.C. Circuit, and this case may well end up before the Supreme Court, especially on the central issue of presidential immunity.

Read more from the original source:
After Oral Argument, the Future of Thompson v. Trump Remains Unclear - Lawfare

A New Hanover County Board of Education member said a resolution to censure her wont deter her from her mission to hold those on the board, and in the school district, accountable.

The board passed a resolution to censure member Judy Justice in a 5-2 vote Friday afternoonafter Justice was accused of revealing confidential personnel information to someone who was not permitted to have it. Justice said after the meeting she felt the move was personal, and she plans to continue pushing for more transparency from the district going forward.

Im fighting the battles trying to help the district, and when they fight me, theyre in essence fighting against doing good things for the district, Justice said.

Justice and board Vice Chairwoman Stephanie Walker were the only two members to vote against the censure. A censure does not result in any action it's simply a tool to let Justice know the board does not support or agree with her actions.

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Kraybill said after the meeting she was made aware of allegations Justice had violated the code of ethics by disclosing personnel information in the fall. The board previously passed a vote of no confidencein June after then-Chairwoman Stefanie Adams accused Justice of lying during a board meeting.

DuringFriday'smeeting, the board went into a closed session to discuss personnel matters that could not be disclosed to the public. After, Justice was given a chance to address the board and thepublic andbrought forth a list of 10 ways other board members had violated the boards code of ethics that had gone unaddressed.

This witch hunt is personal and everyone on this(board)knows it, Justice said during her statement. It is time we did our job for the people and serve the people, not some peoples individual agendas.

Justice also alleged Superintendent Charles Foust had accused her of harassing him. Attorney Colin Shive interrupted Justice, saying he would advise her to move on from that subject to avoid revealing further personnel information. Kraybillsaid the subject was not germane to the topic at hand.

Justice went on to say it was her first amendment right to bring up the accusation and said she had no intention of bringing up confidential personnel information.

As Justice continued her statement about the alleged harassment, Foust interrupted her, saying he had 275 emails to prove she had harassed him.

I will provide emails if thats what you want, Foust said. You cannot and you will not do that.

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Justice said the emails she sent him had to do with her asking him to do his job. She said after the meetingFoust has not communicated with her in months, though its district policy that the superintendent communicates regularly with members of the board. She alleged he does not respond to her emails or phonecalls, andsaid thats concerning as shewas elected to represent the public before the school district.

Kraybill quickly called the meeting to recess, and she and Foust went to a separate room to speak with Shive. When they returned, Shive called Justice back and spoke with her for several minutes behind closed doors. Walker also went with Justice to speak with Shive.

When Justice returned, she said she felt the censure vote was taking away from important issues going on in the district, like the continued strain on staff and students from the COVID-19 pandemic and decades of sexual abuse allegations against former teachers and administrators.

Several community members attended the meeting as well, holding signs reading I support Judy and attempting to speak with board members while they recessed.

How is this whats best for the kids? one audience member asked theboard, butdid not receive a response.

Kraybill said after the meeting the vote was not personal, and she hopes the board can be unified moving forward to get to those important topics impacting the district.

The community has been very critical of this board, and boards before us about not being transparent, not handling issues in a timely manner," Kraybill said. When I found out that this had occurred, I just said we need to jump on it and get it resolved.

We've got that behind us, and we should be ready to go,shesaid.

Reporter Sydney Hoover can be reached at 910-343-2339 or shoover@gannett.com.

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'This witch hunt is personal': School board votes to censure member in tense New Hanover meeting - StarNewsOnline.com