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How much academic freedom do K-12 teachers actually have to teach what they want? How far does the First Amendment go in shielding them? And where would they stand in the face of new state laws taking aim at the use of critical race theory or the teaching of antiracist lessons?

Measures introduced in at least 20 state legislatures to rein in teaching about race and other controversial and divisive topics have thrust teachers into uncertainty over what they can discuss in the classroom and whether they would face discipline or other legal consequences if they overstep.

This would make me hesitate now on some lessons about race, said August Plock, a social studies teacher at Pflugerville High School, near Austin, Texas. It potentially puts a chill over teachers.

Texas is one of five states where legislators have passed proposals so far this year limiting how teachers may address race issues in the classroom, with laws already signed by governors in Idaho, Iowa, Oklahoma, and Tennessee.

These measures pose a host of legal questions. For example, John Rumel, a law professor at the University of Idaho, said the measure passed in his state raises First Amendment free speech issues.

If Im a K-12 teacher, Im not sure what I can do, said Rumel, a former general counsel to the Idaho Education Association. Can I mention there is a rubric known as critical race theory that exists? Im not espousing it. This measure would give me pause as a teacher and might chill my speech.

While its too early for any of the new laws to have been challenged, the wave of legislation has teachers wondering how much leeway they have to veer from approved curricula or to address issues proscribed by state laws.

The blunt answer: While K-12 teachers retain some protections for their comments on issues of public concern, they dont have much in the way of academic freedom to veer from the curriculum or infuse their own experiences and views into the classroom.

I am reluctant to come to this conclusion, but in the K-12 sector, teachers do not really have any academic freedom, said Richard Fossey, a recently retired professor who taught education law at the University of Louisiana at Lafayette and has co-written several journal articles on the topic.

Suzanne Eckes, an education professor at Indiana University-Bloomington who has also written about the issue, said that under a series of decisions from the U.S. Supreme Court and the federal courts of appeals, K-12 teachers do not have the type of academic freedom that courts have recognized for college professors.

You dont have a lot of leeway, Eckes said she tells teachers. If a teacher called me and said, I want to teach the 1619 Project or about the Tulsa race massacre but my supervisor has advised me not to, I would sympathize with them, but would add that they could get in trouble for teaching those concepts.

The laws passed or proposed so far generally prohibit schools from teaching that one race or sex is inherently superior, that any individual is consciously or unconsciously racist or sexist because of their race or sex, and that anyone should feel discomfort or guilt because of their race or sex.

Some adopted or pending measures specifically mention critical race theory, a decades-old academic framework that examines how racism has shaped the U.S. legal system and has become the crux of controversies across the country.

Richard Fossey, retired law professor, University of Louisiana at Lafayette

At least two proposals specifically singled out as a prohibited topic for the schools the 1619 Project, a long-term reporting effort by The New York Times that has been turned into a curriculum centered around the year that enslaved Africans were first brought to colonial America.

But it remains unclear to what degree the various pieces of legislation address specifics of whats actually being taught in the nations schools.

Very few school districts will say out loud, Were adopting critical race theory, said Daniel R. Suhr, a lawyer with the Chicago-based Liberty Justice Center, which has sued a Nevada charter school and a Virginia school district over some of their anti-racism curricula or policies. They might say, Were embracing equity.

Critics often cite critical race theory as the basis for many diversity and inclusion efforts, regardless of how much the framework has actually informed those programs.

Many teachers, of course, freely express their opinions in their classrooms and make instructional decisions that veer from the approved curriculum.

I was a high school teacher, and I was always giving my political opinion and nothing ever happened to me, said Eckes, the Indiana University education professor. But that was due more to the grace of school administrators than any legal protections.

The U.S. Supreme Court has recognized academic freedom for professors and institutions at the higher education level, with a 1967 decision calling the college classroom the marketplace of ideas.

When it comes to K-12 teachers, the high court has made some lofty pronouncements, such as its language in the landmark Tinker v. Des Moines Independent Community School District decision on student speech, which declared that neither students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.

Education law scholars also can point to a handful of cases in which K-12 teachers did win court rulings in support of their classroom expression. In the 1960s and 1970s, teachers won cases after being fired for uses of the F-word, for using a controversial role-playing method to teach about Reconstruction, and for distributing surveys to students about sex, drugs, and euthanasia.

But in 2006, the Supreme Court ruled in Garcetti v. Ceballos that public employees generally do not have First Amendment protection for their on-the-job speech.

In a friend-of-the-court brief submitted in the Garcetti case, the National Education Association had argued that to teach is to communicateoften on matters of the greatest public importance and controversy. A decision that failed to recognize First Amendment protection for job-related speech would have a devastating impact on teachers, the union said in its brief.

Garcetti involved an employee of a prosecutors office. In his majority opinion, Justice Anthony M. Kennedy said the court was not deciding whether its analysis would apply in the same manner to a case involving speech related to scholarship or teaching. The line was perhaps a response to a dissent by Justice David H. Souter, who expressed concerns about the effect of the majoritys principle on academic freedom in public colleges and universities.

Since Garcetti, numerous courts have ruled that the potential exception for scholarship and teaching did not apply to K-12 educators.

In a 2007 case, a federal appeals court upheld the non-renewal of an Indiana middle school teacher who had expressed her opposition to the U.S. war in Iraq to her students, which had led to parent complaints.

Another federal appeals court, in a 2016 decision, upheld the discipline of a Chicago 6th grade teacher whose principal overheard him teaching his students not to use the N-word. The teacher was suspended for five days for using verbally abusive language in front of students, even though the teacher was trying to explain why the word was offensive.

In a 2010 decision, a federal appeals court upheld the non-renewal of an Ohio high school teacher who had centered a lesson around banned books that included some selections parents considered inappropriate. The U.S. Court of Appeals for the 6th Circuit, in Cincinnati, analyzed the competing interests at stake in that case, Evans-Marshall v. Tipp City Exempted Village School District.

On the one side, doesnt a teacher have the First Amendment right to choose her own reading assignments, decide how they should be taught and above all be able to teach a unit on censorship without being censored or otherwise retaliated against? the court said. On the other side, doesnt a school board have the final say over what is taught, and how, in the public schools for which it is responsible? Who wins depends on which line of legal authority controls.

The appeals court sided with the school district, holding that Garcetti applied because the teacher was acting pursuant to her job duties and the First Amendment does not extend to the in-class curricular speech of teachers in primary and secondary schools.

Stuart Stuller, Colorado attorney representing school boards

The 6th Circuit court recently appeared to reaffirm the distinction on academic freedom between college professors and K-12 teachers. A 6th Circuit panel ruled in March that an Ohio college professor who refused to use the preferred pronouns of a transgender student because of the professors religious beliefs was protected by academic freedom.

The college had punished a professor for his speech on a hotly contested issue, in violation of the First Amendment, the court held. The court said in a footnote that its 2010 ruling in Evans-Marshall was limited to schoolteachers.

Fossey, the University of Louisiana professor, said the Supreme Courts Garcetti decision has been really hostile to the view that K-12 teachers have any control over the curriculum or even their teaching style.

Stuart Stuller, a veteran Colorado attorney representing school boards, said the rationale for districts supervision of teachers on-the-job speech is that when the teacher is standing in front of the classroom, that teacher is a representative of the state.

The First Amendment doesnt necessarily give subordinate employees the right to do something the supervisor has told him not to do, said Stuller, who is nonetheless sympathetic to academic freedom concerns of teachers and once wrote a law journal article on the subject.

Teachers and other public school personnel still have First Amendment protections for speaking out on matters of public concern outside of their job duties, even when those matters involve the operations of their employer.

That was underscored by another controversy this month in the 82,000-student Loudoun County, Va., district outside Washington, D.C. A state judge ordered the reinstatement of an elementary school teacher who was suspended after speaking up at a school board meeting against a proposed gender-equity policy that would include requiring teachers to address transgender students by names and pronouns used by those students. The district received several complaints about the teachers public comments and placed him on administrative leave because of the disruptive impact his remarks had on his school, court papers say.

The state judge on June 8 issued a temporary injunction in favor of the teacher after analyzing the case under Pickering v. Board of Education of Township High School District 205, a 1968 Supreme Court decision that a teachers speech on a matter of public concern is protected under the First Amendment if it outweighs the employers interests in workplace efficiency and lack of disruption.

Alice OBrien, the general counsel of NEA, said the new state laws limiting what teachers and schools may say about racism and other matters are certain to be challenged in court, though likely not on the grounds of teacher academic freedom.

These are situations where the state legislature is prohibiting the instruction of certain concepts in the schools, she said. These laws are aimed at instruction across a state, and that is a different context than that of an individual teacher right.

Such challenges will likely be based on the 14th Amendments equal-protection clause because the measures were enacted with racial animus, OBrien said. And they could be subject to challenge based on the First Amendment right of students to receive information, she said.

OBrien pointed to rulings that resulted in the invalidation of an Arizona law that barred public schools from instituting an ethnic studies curriculum, such as by holding classes or programs that promoted resentment toward a race or class of people, that were designed primarily for pupils of a particular ethnic group, or that advocated ethnic solidarity instead of treating students as individuals.

The law was pushed for by a Republican state superintendent of public education and was targeted at a Mexican American Studies program in the Tucson school district and challenged in court.

The U.S. Court of Appeals for the 9th Circuit, in San Francisco, in 2015 held that the law was not unconstitutional on its face, but allowed the challenge to proceed based on evidence of discriminatory purpose in the enactment and enforcement of the law. A federal district judge in 2017 struck down the Arizona law on equal protection and First Amendment grounds.

These statutes want schools to impart a particular view of America, said OBrien. They are intended, at the very least, to chill speech. And they seem to be having that impact.

View post:
If Critical Race Theory Is Banned, Are Teachers Protected by the First Amendment? - Education Week

It may be dubbed the "Promoting Rights and Online Speech Protections to Ensure Every Consumer is Heard" (PRO-SPEECH) Act, but a new bill from Mississippi Republican Sen. Roger Wicker is anything but First Amendment-friendly. Wicker's measure would ban huge swaths of online content moderation, forcing private internet forums to host speech that may currently violate their terms of service and be considered hateful, harassing, vulgar, or otherwise undesired.

The bill would also take aim at freedom of association and free markets, disallowing some tech servicessuch as app stores and cloud computing companiesfrom choosing what products they offer or what businesses they'll contract with.

Introduced Thursday, the so-called PRO-SPEECH Act strikes at the heart of First Amendment protections, compelling companies under threat of sanction from the government to platform messages they otherwise wouldn't.

Essentially, Wicker's bill is "net neutrality" legislationsomething that was vehemently opposed by Republicans of yorebut for online content platforms, search engines, and marketplaces rather than internet service providers. The bill would make it illegal for digital entities to block or impede access to "any lawful content, application, service, or device" that doesn't interfere with platform functionality or "pose a data privacy or data security risk to the user."

The bill would also explicitly ban taking action against a user based on "political affiliation." Tech companies could no longer choose to ban, for instance, Nazi content or decline to host web forums devoted to white supremacist political groups. Web forums couldn't choose to be exclusively for conservative users, or progressive users, or so on.

"Approximately zero people actually want" the Internet this bill would create, Daphne Keller of the Stanford Cyber Policy Center commented on Twitter.

Notably, the bill would exempt from some provisions any company that "publicly proclaims to be a publisher."

It has been a common conservative delusion that Section 230 of the Communications Decency Act already turns on some sort of vital legal distinction between "publishers" on one hand and "platforms" on the other, with platforms having a responsibility to remain neutral conduits for content and only publishers allowed to set any rules for what types of content they will carry. This is not actually the way that Section 230 works.

But "Senator Wicker is trying to make the ridiculous and nonsensical 'publisher/platform' distinction an actual thing, despite the fact that this is blatantly unconstitutional," writes Mike Masnick at Techdirt. "The end result is that this bill leans into the moderator's dilemma and creates two types of internet sites: complete garbage dumpswhere no moderation can take place, and Hollywood-backed squeaky clean productions. It wipes out the parts of the internet that most people actually like: the lightly moderated/curated user-generated aspects of social media that enable lots of people to have a voice and to connect with others, without being driven away by spammers, assholes, and abusers."

In addition, the bill also redefines anti-competitive behaviorthe backbone of antitrust law violationsto include any large company blocking, prohibiting, or discriminating against any platform that competes with any part of its own business. No matter how many of a company's rules the quasi-competitor violated, it would have to be allowed.

The Federal Trade Commission (FTC) would have broad discretion to enforce the law, making it ripe for politics-based abuse. Small internet businesses would be exemptexcept for when the FTC decides they are not.

Violations would be considered unfair and deceptive practices under the Federal Trade Commission Act. Anyone could register a complaint with the FTC alleging a violation, creating a massive new undertaking for the commission as internet moderation police and a massive new layer of bureaucracy for tech companies, which would be required to respond to every complaint.

In essence, the law would quite literally make a federal case out of every aggrieved YouTuber who gets demonetized, business that thinks its search results aren't high enough, troll who feels he deserves a right to say whatever he wants online, etc. If tech companies don't issue a reparation to the complainant, the FTC would be forced to open an investigation within five months.

Follow this link:
The PRO-SPEECH Act Is Anything but First Amendment-Friendly - Reason

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 nowset the bar awfully damn high.

But the mightiest weapon in the journalistic arsenal isn't opinion columns.It's 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 don't need to "take sides" with one party or another, and they don't 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.

That's the true power of the press.

And those editors should start with an easy one by relentlessly covering the Justice Department's recent outrageous seizures of reporters' communication records. That means news storiesevery dayuntil the public is able to fully understand how they were authorized and by whom, how they were allowed to proceedand what will prevent similar occurrences in the future.

Assaults on freedom of the press aren't "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 major headlines and spawned a number of angry opinion pieces.

But with the notable exception of the Times, there's been relatively little news coverage since then. (On Thursday night, the Times continued its streak with abarnburnerreport that Trump's DOJ had similarly subpoenaed communications records of Democrats on the House Intelligence Committee.)

What's 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 Biden's. A huge element of this story is why those investigations weren't immediately abandoned and condemned and why the Justice Department under Merrick Garland won't come clean about what happened.

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

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

"This escalation, on Biden's 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, elicitingsome 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.

AsAnna Diakun and Trevor Timmwrote in the Columbia Journalism Review, the new policy is "a significant improvement to the DOJ's 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 theTimesnoted, the DOJ's 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 the Justice Department considera member of the news media?

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

On CBS Now, for instance, Times reporterMatt Apuzzomade the crucial point that there's 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 Simonannounced this weekthat he will step down after 15 years as 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 identifying information about readers who had accessed a particular story online during a 35-minute window.

The request related to a Feb. 2 articleabout 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 and 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 TODAY's attorneys Saturday."

How could that have happened?

Some of the ideally relentless news coverage would also involve questions for the news executives who received subpoenas.

Why did New York Times lawyer David McCraw honor such an obviously absurd gag order? (The 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 wasmost 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, didtheyhonor the gag order? Why didn't they just call a press conference?

There are much tougher questions for CNN, which in its own reporting buried the fact that it caved to the Justice Department'srequestfor reporter Barbara Starr's email logsfor June and July 2017.

CNN lawyerDavid Vigilante, honoring a gag order the whole time, apparently fought the Justice Department's request from May 2020 all the way through Januaryof this year. He even won a court ruling that CNN shouldn't 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 Starr's external email contacts during the specified time period to the Justice Department.

CNN'sofficial lineis that those were "essentially records that the government already had from its side of these communications."

Sorry, that doesn't cut it.

Transparency and accountability for everyone!

More here:
To save democracy, let's start by saving the First Amendment - Salon

When I first read the recently published article by Chaplain (Major) David Evans entitled, Starting again: A call for chaplains to reconcile and properly support LGBTQI+ soldiers, my initial response was one of appreciation. I shared the article on Facebook and stated, The entire First Amendment is brought to bear in this one publication. A sensitive but important discussion. Chaplain Evans appropriately states, A chaplain is at the service of all soldiers. This is absolutely true. The oath I have taken to support and defend the Constitution of the United States means my charge as a chaplain a religious leader is to champion the free exercise of religion that the First Amendment to the Constitution protects. However, each chaplains interpretation of sacred texts and traditions pertaining to the capability of performing religious rites is a matter of the free exercise of religion.

Department of Defense Instruction (DoDI) 1300.17, Religious Liberty in the Military Services states, no Service member may require a chaplain to perform any rite, ritual, or ceremony that is contrary to the conscience, moral principles, or religious beliefs of the chaplain. At the core of the DoDI is the Free Exercise Clause of the First Amendment to the United States Constitution. The Free Exercise Clause and the associated Establishment Clause together comprise the concept of freedom of religion inherent in the First Amendment. The Establishment Clause is the first segment which states, Congress shall make no law respecting an establishment of religion. The Free Exercise Clause is the second segment which estates, [Congress shall make no law] prohibiting the free exercise thereof. In other words, the Establishment Clause prevents the state and federal governments from mandating religious practices. In contrast, the Free Exercise Clause prevents state and federal governments from inhibiting the religious practices of individuals.

To the heart of Chaplain Evans article, how the Chaplain Corps supports LGBTQI+ soldiers is of utmost importance. Recent command initiatives to enforce the standard that all persons are treated with dignity and respect are imperative. Existing policy, doctrine and regulation guide the Chaplain Corps and mandate every soldier, dependent and civilian is treated with dignity and respect. Nonetheless, as chaplains care for those whom we serve we must hold fast to our religious convictions in order to be the religious leaders the military requires us to be. If religious convictions do not matter for the religious leader, then there is reason to believe those religious convictions should not matter for anyone. Religious leaders and communities should not only be permitted, but should be encouraged, to interpret their sacred texts and traditions and to act in accordance with those interpretations (so long as their actions are not criminal and do not impinge on the Establishment Clause).

One of the issues at stake is whether or not a persons sexual orientation is a matter of religion. Most religious leaders worldwide believe sexual orientation is a matter of religious importance. The Department of Defense understands individual expressions of sincerely held beliefs (conscience, moral principles, or religious beliefs) which do not have an adverse impact on military readiness, unit cohesion, good order and discipline or health and safety as being protected under the banner of religious liberty (DoDI 1300.17). The argument Chaplain Evans presents is essentially that if the Chaplain Corps is not careful, individual expressions of sincerely held beliefs by chaplains regarding normative practices of sexuality could collectively have an adverse impact on the military. This is a fair caution, but could also be misconstrued. If state and federal governments begin requiring chaplains to transgress sincerely held beliefs, then we will restrict the free exercise of religion of the very people whom we have charged with the task of protecting the free exercise of religion.

In summary, the Chaplain Corps should unequivocally set the standard for treating people with dignity and respect; and there is room for improvement here. However, as chaplains, we should champion the free exercise of religion of those who have taken the oath to serve as chaplains just as much as we champion the free exercise of religion of those for whom we have taken the oath to serve. If we do not account for the free exercise of religion for all soldiers regardless of category, we will undermine our ability to advocate for others.

Chaplain (Capt.) Jordan Henricks is an active duty Army Chaplain currently serving with the 75th Ranger Regiment.

Commentary: The opinions expressed in this article are my personal opinions and do not represent the United States Army or the Army Chaplain Corps

Editors note: This is an op-ed and as such, the opinions expressed are those of the author. If you would like to respond, or have an editorial of your own you would like to submit, please contact Military Times managing editor Howard Altman,haltman@militarytimes.com.

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Responding to a call for chaplains to reconcile and properly support LGBTQI+ soldiers - ArmyTimes.com

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