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A federal judge is not buying the First Amendment argument that the Proud Boys are spinning in an attempt to evade criminal punishment for their alleged participation in the attack on the U.S. Capitol. U.S. District JudgeTimothy Kellyon Tuesday refused to throw out charges against four members of the far-right groupEthan Nordean,Joseph Biggs,Zachary Rehl, andCharles Donohoewho wereindicted in Marchon riot-related offenses, including conspiracy and obstructing an official proceeding. (All have pleaded not guilty.) Lawyers for the four men had sought to dismiss the charges by arguing, among other things, that the conduct they have been accused of engaging in is protected by the First Amendment right to free speech. But Kelly, an appointee of former presidentDonald Trump, argued thats not how that protection works.

Quite obviously, there were many avenues for Defendants to express their opinions about the 2020 presidential election, or their views about how Congress should perform its constitutional duties on January 6, without resorting to the conduct with which they have been charged, Kelly, wrote in Tuesdays43-page opinion. That conduct includes trespassing, destruction of property, and interference with law enforcement,perBloomberg. Defendants are not, as they argue, charged with anything like burning flags, wearing black armbands, or participating in mere sit-ins or protests, Kelly wrote. Moreover, even if the charged conduct had some expressive aspect, it lost whatever First Amendment protection it may have had.

The four leaders of the Proud Boys are not the only riot defendantsthat the U.S. government has chargedwith obstructing an official proceeding. Prosecutors have relied on the statutewhich carries a maximum imprisonment of 20 yearsto charge hundreds of people involved in theJanuary 6 riot, many of whom have challenged its legality in court,accordingto CNN. Kelly on Tuesday became the fourth D.C. District Court judge toallowprosecutors use of the law to stand, writing that the Court is not persuaded by defendants claim that Congress certification of the Electoral College vote was not an official proceeding. The Proud Boys case is one of the most serious conspiracy cases against Capitol riot defendants, and Kelly siding with the Justice Department gives momentum to prosecutors as they prepare for the first wave of U.S. Capitol riot-related trials beginning in February, CNN notes.

The governments win comes a week after two members of a different right-wing group, the Oath Keepers, tried and failed to get JudgeAmit Mehta,also presidingin D.C.s federal court, to throw out the obstruction charge against them in another pivotal January 6 case. In that case, the defendants were alsounsuccessfulin arguing that Congresss certification of the electoral results was not an official proceeding and that their alleged activities were protected free speech.

As prosecutors win support for their use of the obstruction charge against January 6 defendants, Representative Liz Cheney(R-Wyo.) hasraised the prospectofDonald Trump himself facing possibleobstruction chargesdepending on what new evidence the panel finds. Cheney, the vice-chair of the House committee investigating the insurrection,referencedthe criminal statute earlier this month at a House panel hearing where she pushed forMark Meadows, Trumps last White House chief of staff, to be held in contempt for refusing to cooperate. (The Houseeventually did hold him in contempt.) Meadowss testimony, Cheney said, will bear on a key question in front of this Committee: Did Donald Trump, through action or inaction, corruptly seek to obstruct or impede Congresss official proceeding to count electoral votes?

Meanwhile, the panel has beenramping up in recent days and is potentially turning to other members of Trumps inner circle, such asRudy Giuliani, to gain more insight into Trumps involvement in the insurrection.

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Judge to Proud Boys: No, Violently Storming the Capitol Isnt a First Amendment Exercise - Vanity Fair

Last week, Jackson Mayor Scott Conger opened a minor can of worms when he shared a Christmas card quality photo of himself and his family in Downtown Jackson.

He opened the post by asking how we can honor the birth of Christ and then posted James 1:19-20 My dear brothers and sisters, take note of this: Everyone should be quick to listen, slow to speak and slow to become angry, because human anger does not produce the righteousness that God desires.

He then wished everyone reading a Merry Christmas.

By the time Christmas was over, there were more than 400 comments on the post with many of them wishing Merry Christmas back to the mayor and some even acknowledging their appreciation that he would mention Jesus Christs birth in his holiday message, something that many government officials opt not to do for varying reasons.

But among the more than 400 comments were a few that accused him of violating the First Amendment, specifically the part about freedom of religion.

Conger actually replied to a couple of them defending his statement with another part of the First Amendment, freedom of speech.

Now Im all for constructively criticizing Jacksons mayor as much as the next person when its warranted, but I dont think this is one of those times.

A lot of people seem to misunderstand the freedom of religion part of the First Amendment.

They seem to expect that when a person is elected to office or hired for a job within the government that theyre expected to leave their religion outside City Hall or the Courthouse or the White House or wherever theyre serving.

But thats not the case.

When the nations founding fathers wrote the Constitution and the Bill of Rights, they were trying to make a nation that was the exact opposite of the nation they were breaking free from in England.

And that country imposed a national religion and expected all citizens to follow that religion if they wanted to be a part of that country or its empire.

So freedom of religion keeps the United State of Americas federal government and every state and local government within its borders from forcing a certain religion or any religion for that matter on its citizens.

It doesnt keep religion out of government.

It doesnt mean that a person who claims to be a Christian and runs for mayor is to refrain from praying or going to church or reading the Bible or anything like that while he or she is in office for four years every time he or she is elected.

If were to use Conger in this example, he just cant make any executive orders or push the City Council to pass any resolutions forcing or prohibiting one particular religion on Jacksons citizens.

I can tell you that one of Congers early executive orders during the pandemic had a line that was difficult to decipher regarding churches meeting, and I had conversations with city officials on a specific Friday in the spring of 2020 letting them know we at The Sun were prepared to do appropriate reporting that weekend and the following week if the executive order did restrict gatherings at church and law enforcement did enforce it before I was assured that the order was not prohibiting religious gatherings.

Faith may play a role in decisions he makes. At the state level, Gov. Bill Lee isnt shy about how his Christianity influences him to make some of the decisions he makes. And of course that brings out similar accusations against Lee that Congers Merry Christmas post did.

Of course a Merry Christmas wish from a city mayor and a policy declaration by a state governor are two different things with different ramifications.

But the checks and balances system of our government is in place for when that gray area of religion in government tends to get too dark on the side of religion if a policy affects a person or group of people too much.

But checks and balances do not affect whether or not someone can say Merry Christmas. And no ones First Amendment rights were violated last week with Congers post.

Save that argument for when it matters.

Brandon Shields is the editor of The Jackson Sun. Reach him at bjshields@jacksonsun.com or at 731-425-9751. Follow him on Twitter @JSEditorBrandon or on Instagram at editorbrandon.

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First Amendment is freedom of religion, not from it | Opinion - The Jackson Sun

In the first reported interpretation of a 2021 amendment to CEQAs statute of limitations provisions, the First District Court of Appeal addressed whether an action against a lead agency must be dismisseddespite being filed within the limitations periodbecause of a failure to [timely name and serve] necessary third parties. Save Berkeleys Neighborhoods v. The Regents of the University of California (Collegiate Housing Foundation, American Campus Communities, et al.), 70 Cal.App.5th 705 (2021). Acknowledging that the Legislature sought to provid[e] a bright-line rule as to which persons must be named [and served] in the CEQA complaint, the Court nonetheless decided that Code of Civil Procedure Section 289(b)s equitable test for determining indispensability still applies to determine whether an incurable failure to timely name and serve real parties requires dismissal of the entire action.

The Regents of the University of California filed a notice of determination on May 17, 2019, regarding certification of a Supplemental Environmental Impact Report analyzing an academic building, campus housing and parking project approved by the Regents for the Berkeley campus. The NOD identified American Campus Communities and the Collegiate Housing Foundation as the parties undertaking the project. Save Berkeleys Neighborhoods June 13, 2019 petition for a writ of mandate failed to name either ACC or CHF. A first amended petition filed on September 18, 2019, added ACC and CHF as real parties in interest, and a first amendment to the first amended petition subsequently sought to add various ACC entities as real parties.

ACC and CHF argued that the incurable failure to timely name and serve persons identified on a NOD as undertaking a project requires dismissal. The First District rejected this argument, relying on legislative history to resolve textual ambiguities in Section 21167.6.5 and preserve the applicability of an equitable indispensable party analysis in CEQA actions.

Prior to 2012, Public Resources Code Section 21167.6.5(a) required that any recipient of an approval be named and served in CEQA actions as real parties in interest. However, then-applicable PRC Section 21108(a) did not require state agencies to identify the recipient of an approval on NODs. Courts enforced Section 21167.6.5(a) by 1) identifying the approval subject to challenge and the recipients thereof, and then 2) applying Code of Civil Procedure Section 389(b)s equitable balancing test to determine whether unnamed approval recipients were indispensable such that an incurable failure to name them requires dismissal of the entire action.

Assembly Bill 320 (2012) amended Section 21108(a) to require state agencies to identify on notices of determination those undertaking a project supported by contracts, grants, subsidies, loans, or other forms of assistance from one or more public agencies or that involves the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies. Public Res. Code 21065(b) and (c). AB 320 also amended Section 21167.6.5(a) to replace the phrase any recipient of an approval with the person or persons identified by the public agency in its notice filed pursuant to Section 21065(b) or (c).

The Court of Appeal held that amended Section 21167.6.5(a) does not require dismissal for failure to timely name and serve as real parties those identified on a NOD as undertaking a project. It ruled that the use of shall in 21167.6.5(a) (The petitioner or plaintiff shall name, as a real party in interest ) only requires that parties shall file and serve the real parties in interest within a limitations period Failure to do so excludes real parties in interest from the action. The statutory language does not expressly condition a petitioners ability to bring suit upon the inclusion of the real parties in interest.

Having found AB 320s amendments left Section 21167.6.5(a) silent as to the impact on a partys failure to name and serve the real parties in interest, the Court of Appeal concluded that the Legislature sought only to eliminate uncertainty arising from parties and courts independently assess[ing] which entities qualified as recipients of an approvalnotoriously complex inquiries often involving numerous sub-inquiries. The Legislature, however, did not address the courts use of CCP Section 389(b)s equitable balance test to determine indispensability. Reviewing the legislative history, the court noted that the Senate deleted a provision in the Assembly version of the bill that allowed a CEQA legal action to be dismissed for failure to serve the recipients of the lead agencys approval with the petition or complaint. The opinion also referenced the Legislatures expressed intent to prevent the dismissal of important and meritorious CEQA cases, observing that [t]he approach advocated by appellants would increase dismissal of CEQA cases.

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Failure to Timely Name and Serve Real Parties In Interest Does Not Warrant Dismissal Of An Entire CEQA Action if The Unnamed Parties Are Not...

Omicron is still raging across the country, but this holiday season it was houses of worship, not the state, that decided whether to gather or move celebrations online.

Governors and mayors are still issuing restrictions in the name of safeguarding the public, like requiring vaccine passports. But they are not shuttering houses of worship the way they did early in the pandemic.

That may be because last year, the U.S. Supreme Court erected a firewall around religious liberty. And that firewall appears to be holding.

In Roman Catholic Diocese of Brooklyn v. Andrew M. Cuomo, the court schooled the executive branch: (T)he Constitution cannot be put away and forgotten.

The high court overturned restrictions in California, Nevada and New York that regulated worship more harshly than economic activity. For instance, Nevada capped religious services at 50 people, while casinos could operate at 50% capacity. California even encroached on in-home worship, prohibiting more than three families from worshipping in a persons home or backyard.

Many people reflexively side with public health, for good reason. The coronavirus has yet to relinquish its grasp on society. But we cannot overlook the degree to which worship was relegat(ed) to third-class citizenship, as charged by the South Bay United Pentecostal Church, which twice reached the Supreme Court in challenging Californias orders.

In early 2020, South Bay simply wanted to open. California said no one could safely worship, even in the most cavernous cathedral. In May 2020, California allowed 100 worshipers. South Bay wanted to serve more. The church pointed out that California permitted factories and restaurants to reopen with safeguards; why couldnt the church?

That same month, the Supreme Court narrowly sustained Californias 100-person cap on worship gatherings, citing a century-old case holding that (o)ur Constitution principally entrusts (t)he safety and the health of the people to the politically accountable officials of the States.

But by February 2021, with vaccines becoming available, the court lost patience. Lacking sufficient justification, it struck the cap. Deference, though broad, has its limits, Chief Justice John Roberts noted.

Many ascribe the Supreme Courts intolerance of worship restrictions in 2021 to the addition of Justice Amy Coney Barrett, but the justices were simply applying precedent.

Singl(ing) out houses of worship for especially harsh treatment draws strict scrutiny, the Supreme Court held in 1993. This means that the government must show a compelling interest and no less restrictive means to achieving exceedingly important ends. Yet these orders read like edicts, Justice Neil Gorsuch would later say, because almost no explanation was given.

Californias orders are a prime example. In press conferences about the states 100-person cap, Gov. Gavin Newsom cited stock CDC guidance about the need to contain the contagion given spiraling case numbers. When asked by reporters why he was applying specific and different caps on places of worship and not schools, Newsom said, Perfects not on the menu.

He did not explain what factors guided Californias categories or why people mixing from far and wide in an enclosed space was a problem in church, but not in factories. The Constitution and the First Amendment were nowhere mentioned.

Two Californians sued over the restrictions on in-home worship. They challenged why they could watch John Legend sing outdoors ... (but not) host their faith community in their backyard.

True, worship gatherings had acted as super-spreaders early on. But so had factories, meatpacking plants and nursing homes. According to California, factories were safe because entry could be staggered. But the litigants offered to stagger the congregants entry and implement requirements for social distancing and masks.

Calvary Chapel in Nevada sued Gov. Steve Sisolak twice, asking to host worship services on the same terms as casinos at 50% capacity, not just 50 people.

Gorsuch skewered the disparity: (T)here is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.

Later, the federal courts struck Nevadas scheme as discriminatory, violating the First Amendment.

New York also violated a cardinal First Amendment rule. It created cluster zones, with the tightest restrictions in the center and looser ones moving outward. On CNN, then-Gov. Andrew Cuomo blamed the ultra-Orthodox community for creating clusters. Catholic schools happen(ed) to be in the zone, too.

In red zones, houses of worship could accommodate 10 or fewer people, yet essential businesses like warehouses faced no caps. In yellow zones, places of worship were capped at 50% capacity; restaurants in yellow zones at that time had no cap on the total number seated.

Agudath synagogues and Brooklyns Roman Catholic Diocese both sued Cuomo, charging that he was targeting religion.

During litigation, the governors experts could cite no evidence of spread from the Orthodox community and admitted that the Brooklyn diocese was in fact taking the necessary precautions, just as essential businesses do.

The Supreme Court struck New Yorks policy, finding that it discriminated against people of faith.

Adding insult to injury, all three states permitted places of worship to reopen only after services deemed essential, like liquor stores and bike shops.

These ill-constructed orders were expensive. All three states paid hundreds of thousands of dollars in attorneys fees. Thankfully, during this holiday season, governments have not retread these orders.

If omicron or another variant forces more restrictions, governors and mayors would do well to construct coherent policies and transparently explain them from the beginning. Asking people to forego worship, an important source of support during crisis, should only happen when governments articulate the criteria for restricting core liberties in such a way that all of us can understand the need.

Robin Fretwell Wilson holds the Mildred Van Voorhis Jones Chair in Law at the University of Illinois College of Law and is a Public Voices fellow with The OpEd Project.

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COVID and churches: Can the government force churches to close? - Deseret News

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More than 200 Marines have been booted from the United States military for refusing to submit to a coronavirus vaccine.

Fox News confirmed Thursday that 206 U.S. Marines have been kicked out of the military since late November for refusing to take the vaccine.

BIDEN'S VACCINE MANDATE WILL DECIMATE OUR MILITARY

A @USMC Marine assists a woman and child during an evacuation at Hamid Karzai International Airport in Kabul, Afghanistan. #HKIA (Department of Defense)

Secretary of Defense Lloyd Austin on Aug. 25 directed all military branches to ensure service members receive the vaccine as the number of cases surged over the summer. The deadlines for each branch of the military passed as of Dec. 15, and disciplinary action appeared to immediately follow.

Several Marines who refused to get the shot were granted anonymity by Fox News Digital, so they could speak freely. They said they are witnessing a "political purge" by the Biden administration that is forcing out the militarys "best and brightest" over deeply held beliefs they say are protected by the First Amendment.

"Theres something fundamentally wrong at this point with our nations leadership," said a major with more than 17 years of active service. "We are facing an unconstitutional edict that I think is very targeted as a political purge, taking out some of the best and brightest soldiers, sailors, airmen, Marines, and guardians from the Space Force."

MIAMI, FLORIDA - DECEMBER 29: A healthcare worker conducts a test at a drive-thru COVID-19 testing site at the Dan Paul Plaza on December 29, 2021 in Miami (Photo by Joe Raedle/Getty Images)

The Marines who spoke with Fox News said they were on the receiving end of a "blanket" denial of religious exemptions, with their applications being rejected without consideration. Eight separate letters of denial provided to Fox News were nearly identical, citing "military readiness" as the primary reason for rejection.

BIDEN MAKING 'GRAVE MISTAKE' ENFORCING MILITARY VACCINE MANDATE, REPUBLICANS WARN

"I saw one package from a sergeant who had attached, like, 30 pages of material to substantiate why his belief was sincere, under no lawful obligation to do so," the master sergeant said. "And then to have this as a response with no individual inquiry and just a generalized assertion of governmental interest is insulting."

Earlier this month, California Rep. Darrell Issa led a group of Republicans in sending a letter to Biden saying he was committing a "grave mistake" in enforcing his military vaccine mandate.

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"As the father of a major in the Judge Advocate General Corps who honorably served our nation in a foreign combat theater, you can fully and uniquely appreciate the sacrifices that our veterans make for America," the letter said. "There is simply no good reason to charge forward, decline all deliberation and recklessly damage perhaps irreversibly our nations security and force readiness," they wrote.

Defense Secretary Lloyd Austin holds a briefing in Tbilisi on Oct. 18, 2021. (VANO SHLAMOV/AFP via Getty Images)

The Army said that 98% of its active-duty force had gotten at least one shot, the Marine Corps said 95% of its force had gotten at least one dose, 97.5% of the Air Force and Space Force have gotten at least one shot and 98.4% of the Navy is fully vaccinated.

The White House did not immediately respond to a request for comment from Fox News.

Fox News Jessica Chasmar and Julia Musto contributed to this report

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More than 200 Marines have been discharged from military due to vaccine refusal - Fox News