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PETITIONS OF THE WEEK ByMitchell Jagodinski on Jun 11, 2021 at 4:27 pm

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, First Amendment challenges to the use of membership fees by a union or bar association to engage in political speech, as well as the definition of a state tax under the federal Tax Injunction Act.

Two petitions ask the justices to consider the First Amendment implications of professional fees that are used for political and ideological speech. In Baisley v. International Association of Machinists and Aerospace Workers, an airline employee challenges a fee levied by an airline workers union even though he is not a union member. Under the federal Railway Labor Act, the employees exclusive bargaining representative is the International Association of Machinists and Aerospace Workers. The employee alleges that the union contracted with his employer, United Airlines, to compel employees to pay fees in an amount equal to union dues. He further alleges that the fees are used to fund the unions ideological and political activities unless a non-member affirmatively opts out of contributing to the unions speech. The employee argues that this practice violates both the Railway Labor Act and the First Amendment. He relies on prior decisions holding that public-sector unions and employers must get an employees affirmative consent before extracting union dues or fees.

Next, in Crowe v. Oregon State Bar, the justices are asked to review the use of mandatory attorney dues by the Oregon State Bar to fund political and ideological speech. The challengers are Oregon attorneys who say the state bar uses the mandatory dues to fund legislative advocacy and other speech on matters of public importance. They ask the court to clarify prior case law on bar-association dues and declare that the Oregon policy is subject to the same exacting First Amendment scrutiny as laws involving subsidized speech by public-sector unions.

Lastly, Healthcare Distribution Alliance v. James asks the court to clarify the difference between state taxes and other types of assessments, such as penalties or fees. New York passed a law imposing an annual surcharge on opioid manufacturers and distributors. The state uses the money to pay for remedial programs related to opioid abuse. Pharmaceutical trade groups challenged the law, arguing that it is unconstitutional. The U.S. Court of Appeals for the 2nd Circuit held that the surcharge is a tax under the federal Tax Injunction Act, which prohibits federal courts from enjoining the collection of state taxes. The trade groups say the 2nd Circuits ruling conflicts with decisions by three other circuits about what constitutes a tax under the TIA.

These and otherpetitions of the weekare below:

Healthcare Distribution Alliance v. James20-1611Issue: Whether the New York Opioid Stewardship Acts surcharge is a tax within the meaning of theTax Injunction Act, despite having features that other circuits repeatedly have held indicative of a punitive fee.

Leontaritis v. United States20-1614Issues: (1) Whether, if a jury is instructed to determine a fact by indicating a unanimous finding beyond a reasonable doubt and does so, the resulting verdict indicates a finding beyond a reasonable doubt, as opposed to a mere failure to find; and (2) whether, if a jury verdict finds a fact beyond a reasonable doubt, a district courts sentencing decision must accept the jurys determination or instead may base the sentence on its own independent finding that contradicts the jurys.

Baisley v. International Association of Machinists and Aerospace Workers20-1643Issue: Whether opt-out procedures for collecting union fees for ideological and political activities violate the First Amendment or theRailway Labor Act.

Nettles v. Midland Funding, LLC20-1673Issues: (1) Whether, underSpokeo, it is sufficient for standing simply to allege a violation of the procedural rights created by theFair Debt Collection Practices Act, as six circuits have held, or must a plaintiff also always allege an additional injury beyond such a violation, as five circuits (including the 7th in this case) have held; and (2) whether some additional injury is required for standing under the Act, whether it is sufficient to allege mental distress or lost time dealing with a violation of the Act, as the 4th, 11th, and D.C. Circuits have held, or whether something more than mental distress or lost time is required, as the 7th (in this case) and 9th Circuits have held.

Crowe v. Oregon State Bar20-1678Issue: Whether the statute that compels attorneys to subsidize Oregon State Bars political and ideological speech is subject to exacting scrutiny.

The rest is here:
Union fees, bar association dues, and the funding of political speech - SCOTUSblog

An attorney who specializes in First Amendment litigation said mediation by a universitys public relations team can cause staff and student media censorship, but it may be necessary for the department to sit in during interviews depending on the sensitivity of the topic.

Greg Greubel is a staff attorney at the Philadelphia-based Foundation for Individual Rights and Education, a nonpartisan organization working to protect the rights of faculty and students across the U.S.

Greubel said requiring staffers to forward interview request from student media to Marcom can be discouraging to student journalists, and it also hampers the rights of university employees.

It is a violation of the employees First Amendment rights to have this buffer between speaking to journalists and the university, said Greubel, who spoke about student journalists rights at the virtual convention of the Society of Professional Journalists March 26 .

Greubel said employees are not legally obligated to speak to student journalists, but its necessary they do.

Employees have the right to speak out on matters of public concern, Greubel said. They have the right to talk about it, and its actually very important that they do talk about it.

Greubel said he believes employees should not go through Marcom before being interviewed by student media. He said its censorship on the employees end. As a result of that, its secondary censorship on student journalists, he said.

Because they cant speak to you, that means you cant do your work, Greubel said. Its a secondary effect but does it cause censorship? I think so.

Greubel also said having Marcom intervene is a common practice across the country, though it may be an obstacle for student journalists.

If you direct all the communications through some university department, then theyre not going to be able to speak, maybe at all. If they do, its going to be a tarnished version, Greubel said.

Going through department heads strains credibility from employees, he said.

Greubel said having to notify Marcom of an interview request puts the employee on notice that theyre being monitored, in some sense.

If what these communications departments are trying to do is actually facilitate truth-telling through employees views, thats one thing, Greubel said. But if what theyre trying to do is to act as a sort of buffer and require university employees to speak through the same voice, then its a problem.

Veronica Valdes, The Mesquites spring editor-in-chief, said she once experienced Marcom sitting-in during an interview with Mari Fuentes-Martin, vice president of student success and engagement, last fall. Valdes was working on a story about events being rescheduled because of a COVID-19 spike on campus.

Valdes said she was surprised Jeanette De Diemar, vice president for advancement and external relations, attended the interview since she had called De Diemar for guidance on who to contact. De Diemar had said Fuentes-Martin would be the best source.

Valdes was told Fuentes-Martin was a university spokesperson, she said those people shouldnt need to go through Marcom since theyre already a university spokesperson.

De Diemar said choosing if a member of Marcom should sit in depends on the complexity of the story and how helpful marcom can be.

There are occasions where theres an overlap because Im an official university spokesperson, its part of my role, De Diemar said. There are people who by the nature of their role they would have participated in an interview.

De Diemar said this is not a common practice. Determining if a member of the department should sit in depends on the complexity of the story.

Greubel acknowledged it may be appropriate for Marcom to monitor an interview, depending on the topic.

It is naive to say they should never sit in, Greubel said.

Read this article:
University employees have right to speak to student journalists, First Amendment expert says | Texas A&M University-San Antonio | TAMUSA - The...

When President Biden began assembling his Cabinet, several commentators predicted that his presidency would be something of an Obama third term. But now Biden has broken further from those predictions in his budget proposal by gutting the Hyde Amendment a long-held and popular policy that prevents federal taxpayer dollars from directly funding abortions.

The Obama administration maintained this commonsense compromise even when Democrats controlled both houses of Congress; and if theyre smart and reasonable, some congressional Democrats today will wake up and do the same.

The Hyde Amendment first passed in 1976 with bipartisan support. In fact,a majorityof the House members who voted for it were Democrats. The Supreme Courtupheldthe provision in 1980, and its been a point of strong agreement for many Americans, both pro-life and pro-choice, long since.

AsSlatedetailedin the debate sparked by Bidens 2019 flip-flop, poll after poll shows that a strong majority of Americans consistently support the Hyde Amendment.Slatefound that the average [polling] gap between the pro-funding and anti-funding positions is 19 percentage points, and that, even among self-identified Democrats, the polling gap inoppositionto the Hyde Amendment lingered in mere single digits. This data is well-reflected in state abortion policy, too. Efforts to channel state tax dollars (which are not touched by the Hyde Amendment) directly toward abortions have succeeded in onlyseven state legislatures.

President Biden has stepped far beyondRoe v. Wadesright to privacy when he defends Hyde bysayingabortion-seeking women also need the ability to exercise their constitutionally protected right via taxpayer financial support. This logic doesnt hold at all.

America is a free country where we enjoy a great many rights, such as a First Amendment right to publish paid ads promoting our policy views free from government censorship, and a Second Amendment right to own a handgun. But it does not follow that we also have a right to force other people to pay for those activities. No serious person believes that. And this principle certainly holds true for forcing Americans to pay for abortions.

The logical inconsistency trend in anti-Hyde abortion activism extends tomanywidely-readcommentatorstrying to discredit the Hyde Amendment by calling it a decades-old or decades-long ban, as if that is a discrediting factor or an indication of bad policy. Should we also pejoratively refer toRoe v. Wadeas decades-old? These journalists and activists would surely say no. The double standard is clear.

The radicals trying to repeal the Hyde Amendment are not pro-choice. They are simply pro-abortion.

DeniseBurkeis senior counsel atAlliance Defending Freedom(@Alliance Defends).

Go here to see the original:
Biden's new proposal on the Hyde Amendment is illogical, unpopular | TheHill - The Hill

TALLAHASSEE, Fla. Today, Fair Elections Center and the Southern Poverty Law Center filed a lawsuit to challenge Florida Senate Bill 90, an omnibus voting rights bill that, among other things, requires civic organizations engaged in voter registration activities to provide misleading information to voters that the organization might not submit their registration application on time and to direct voters to the online registration portal. The law imposes this requirement even though Florida already has some of the most onerous third-party voter registration laws in the country, imposes hefty penalties for non-compliance, and has not had any significant issues with untimely applications across the state.

The lawsuit was filed on behalf of Harriet Tubman Freedom Fighters, Corp. and HeadCount, two nonprofit, nonpartisan organizations that focus their registration efforts on new voters, particularly youth, communities of color, and returning citizens. The complaint challenges the new laws misleading disclaimer and disclosure requirements and alleges that the new law is void for vagueness under the due process clause of the Fourteenth Amendment, compels speech in violation of the First Amendment, and prevents organizations from exercising their First Amendment expressive and associational rights.

"HeadCount has served Florida voters for 16 years, and our volunteers have established deep roots and trust throughout the state." said Tappan Vickery, Director of Voter Engagement for HeadCount, "We believe that peer-based community voter registration outreach is essential to democracy and groups like ours must meet voters where they are. The new requirements not only discredit our work but put democracy itself at risk."

Voter registration organizations serve their communities by building trusted relationships with Floridians for whom voting and participation may not otherwise be accessible, said Michelle Kanter Cohen, policy director and senior counsel at Fair Elections Center. We are bringing this lawsuit to protect our clients right to organize through voter registration activities, communicating their message that our democracy works better when all our voices are heard. According to one of Harriet Tubman Freedom Fighters founders and officers, Sheila Singleton, Florida Senate Bill 90 is just the latest attempt by the politicians in Tallahassee to entrench their power by making it more and more difficult for people to vote. Registering to vote is the first critical step in having ones voice heard and this law creates serious obstacles to people trying to do just that. Harriet Tubman Freedom Fighters, along with our partners across the state, will continue to challenge this unconstitutional law and stand up for the voting rights of all Floridians.

Unfortunately, Floridas legislature has a history of targeting community voter registration organizations with unconstitutional and irrational regulations that violate the First Amendment. SB 90 is no different, especially considering its enactment during a legislative session marked by little public input and other laws criminalizing Floridians exercise of their First Amendment freedoms, adds Emma Bellamy, senior staff attorney for voting rights at the Southern Poverty Law Center. We hope the Court recognizes that protecting the First Amendment and voter registration activities is a non-partisan issue and vital for the continuation of a robust and free democracy.

The lawsuit was filed in the U.S. District Court for the Northern District of Florida. Read the complaint here.

Continued here:
Voting Rights Groups Sue to Block New Restrictions that Make Voter Registration Much Harder in Florida - Southern Poverty Law Center

American democracy is in danger, and American journalism needs to respond with more than slogans.

Editorials are a good start and the Boston Globe has now set the bar awfully damn high.

But the mightiest weapon in the journalistic arsenal isnt opinion columns its relentless news coverage.

Journalists have the unique ability to ask questions on behalf of the public, demand answers, assess truthfulness, decry stonewalling and do it all again the next day.

To rescue and revive democracy, news organizations dont need to take sides with one party or another, they dont need to publish articles full of opinions.

What the top editors in our top newsroom must do, however, is set the agenda. They need to decide what is newsworthy, and then bring their resources to bear accordingly.

Thats the true power of the press.

And those editors should start with an easy one by relentlessly covering the Justice Departments recent outrageous seizures of reporters communication records. That means news stories every day until the public is able to fully understand how they were authorized and by whom, how they were allowed to proceed, and what will prevent similar occurrences in the future.

Assaults on freedom of the press arent inside baseball. These are the front lines. This is a huge story. As David Boardman, dean of the journalism school at Temple University, tweeted:

The formerly secret subpoenas were for records from reporters at the New York Times, the Washington Post and CNN, in order to identify their confidential sources. Two of the subpoenas were accompanied by outrageous gag orders. (Gag orders on news organizations!)

Their overdue public disclosure by the Justice Department in recent weeks made fairly major headlines and spawned a number of angry opinion pieces.

But with the notable exception of the Times, theres been relatively little news coverage since. (The Times on Thursday night continued its streak with a barnburner report that Trumps DOJ similarly subpoenaed communications records of Democrats on the House Intelligence Committee.)

Whats particularly missing even from the Times coverage is the application of pressure on the current Justice Department leadership to fully explain what happened, when, why and how. That should be the drumbeat, every day.

Although the various leak investigations originated during the Trump administration, they extended well into Bidens. A huge element of this story is why those investigations werent immediately abandoned and condemned and why the Justice Department under Merrick Garland wont come clean about what happened.

Some of the opinion pieces were powerful, particularly the one from the normally invisible Washington Post publisher, Fred Ryan.Ryan appropriately pointed out that the Biden Justice Department not only allowed these disturbing intrusions to continue it intensified the governments attack on First Amendment rights before finally backing down in the face of reporting about its conduct.

In fact, it was the Biden administration that imposed the gag order on the New York Timess lawyer, preventing him from disclosing the governments efforts to newsroom leaders or the four reporters whose email logs were at issue. [UPDATE June 13, 12:30 PM: Technically, the gag order was imposed by a federal magistrate judge, responding to an application from the Justice Department. The March gag order amended a January order that had fully gagged Google from talking to anyone about the records request. The March order allowed Google to tell the Timess lawyer, but imposed a gag on him as well.]

This escalation, on Bidens watch, represents an unprecedented assault on American news organizations and their efforts to inform the public about government wrongdoing, Ryan wrote.

The Justice Department on June 5 announced that it would no longer use subpoenas or other legal methods to obtain information from journalists about their sources, eliciting some new headlines.

But that should not have placated anyone in the news business. What it should have prompted is a slew of additional questions about how this new policy would be applied in an accountable fashion.

As Anna Diakun and Trevor Timm wrote in the Columbia Journalism Review, the new policy is a significant improvement to the DOJs previous approach. Still, there are questions to be answered. When will the DOJ officially update its news-media guidelines to reflect this change? And as the Timesnoted, the DOJs statement appears to leave some wiggle room surrounding the circumstances in which the policy applies, limiting it to when journalists are doing their jobs. What exactly does this mean?

Their final, critical question: Who will DOJ count as a member of the news media?

None of the news reports I saw about the policy shift showed any of the appropriate skepticism. For that, you had to be watching television interviews with some of the reporters who were directly targeted.

On CBS Now, for instance, Times reporter Matt Apuzzo made the crucial point that theres no reason to take the Justice Department at its word until it fully explains itself. First we have to understand what happened How did it happen? Why did it happen?

This is becoming a bipartisan pattern, Apuzzo said.

Journalism groups are justifiably concerned. Bruce D. Brown, executive director of the Reporters Committee for Freedom of the Press, said in a statement that serious unanswered questions remain about what happened in each of these cases.

And by coincidence, the esteemed free-press advocate Joel Simon announced this week that he will step down after 15 years as the executive director of the Committee to Protect Journalists. He told the Times: Governments are increasingly taking aggressive action toward journalists, and there are very few consequences.

In addition to the three demands for records in leak investigations, we also learned in the last few days about a Biden-era demand from the FBI that deserves more coverage. The FBI issued a subpoena to USA Today, demanding it hand over the identifying information about readers who had accessed a particular story online during a 35-minute window.

The request related to a Feb. 2 article about the shooting death of two FBI agents while serving a warrant in a child exploitation case in Florida. The 35-minute window in question was more than 12 hours after the shooter had killed himself inside his barricaded apartment.

The request was bizarre, inexplicable, and should have been blocked by superiors. Instead, it was only withdrawn after investigators found the person through other means, according to a notice the Justice Department sent to USA TODAYs attorneys Saturday.

How could that have happened?

Some of the ideally relentless news coverage would also involve questions for the news executives who were subpoenaed.

Why did New York Times lawyer David McCraw honor such an obviously absurd gag order? (The gag order, imposed in March, related to records that were four years old, evidently as part of a fishing expedition aimed to show that former FBI director James Comey disclosed a secret document that was most likely a hoax. I am not making that up.)

Why, once McCraw was allowed to discuss the request with Times publisher A.G. Sulzberger and CEO Meredith Kopit Levien, did they honor the gag order? Why didnt they just call a press conference?

And there are much tougher questions for CNN, which in its own reporting buried the fact that it caved to the Justice Departments request for email logs for reporter Barbara Starr for June and July 2017.

CNN lawyer David Vigilante, honoring a gag the whole time, apparently fought the Justice Departments request from May 2020 all the way through January 26. He even won a court ruling that CNN shouldnt have to turn over the logs of emails that were internal to the company.

But that, apparently, was what CNN cared about most. So six days into the Biden administration, CNN turned over a list of Starrs external email contacts during the specified time period to the Justice Department.

CNNs official line is that those were essentially records that the government already had from its side of these communications.

Sorry, that doesnt cut it.

Transparency and accountability for everyone!

See the article here:
The journalistic crusade to save democracy starts with the First Amendment - Press Watch