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Lisa Graves| Guest Columnist

On April 26, the U.S. Supreme Court heard oral arguments in a case that could unmoor decades of transparency laws, even as dark money spending by special interests continues to rise.

The courts new majority is being asked by billionaire Charles Kochs nonprofits to expand on the notion that money is speech by ruling that the First Amendment bars disclosure laws that may chill large donors from giving more money to nonprofits.

On the surface, the case, known as Americans for Prosperity Foundation v. Bonta, is about whether a state can require a nonprofit group to reveal a list of its donors who give $5,000 or more. That data is not public, but a glitch in Californias electronic filing system inadvertently made it searchable to other filers for a short period, which Kochs Americans for Prosperity Foundation discovered.

The rule requiring secret disclosure has been followed in millions of nonprofit filings since 1970. There is no evidence it was misused or abused by regulators or others, and the California flaw was fixed.

But that was not good enough for Kochs Americans for Prosperity, which apparently had been refusing to provide that data to California anyway, even though it was required by the Internal Revenue Service on Schedule B of their annual tax filings. The IRS has allowed nonprofits to redact the names but requires public disclosure of the largest amounts.

This rule is the only reason we know, for example, that a group called the Wellspring Committee received almost all of its funding, more than $28 million, from a single donor after Justice Antonin Scalia died in February 2016. The donors identity remains unknown.

Between 2016-17, Wellspring gave a total of $38 million to a group called the Judicial Crisis Network, which spent millions to pressure the Senate to block President Barack Obamas nominee for the U.S. Supreme Court, Merrick Garland, and then to push for the confirmation of President Donald Trumps nominee to that seat, Neil Gorsuch. After spending additional millions to help get Brett Kavanaugh confirmed, Wellspring closed.

The case before the Supreme Court continues Kochs assault on even minimal transparency and oversight of nonprofits, which became increasingly involved in elections after the controversial Citizens United ruling in 2010.

Since then, Koch has helped raise and spend more than a billion dollars to influence elections, but the donors are kept hidden. That is why spending through such groups, like Americans for Prosperity, is so robust. Unlike money donated directly to a candidate or political party, which must be disclosed, donations to groups like Americans for Prosperity are secret.

In fact, we do not even know how much Koch himself or Koch Industries has spent, due to Sen. Mitch McConnells blocking of disclosure bills.

Americans for Prosperity has taken credit for spending millions to help GOP candidates win elections and to get Trump-appointed judges confirmed. That includes helping Amy Coney Barrett get confirmed right before the 2020 election, which is why Sen. Sheldon Whitehouse, D-R.I., and others asked that she recuse herself from hearing the case. Barrett refused.

But now, Justices Barrett, Kavanaugh and Gorsuch are poised to aid the agenda of the dark money groups that helped sweep them onto the Supreme Court. They may even strike a fatal blow against disclosure laws, like HR 1, the For the People Act, which would shine a light on billionaires like Koch who have secretly spent untold millions to influence elections.

This is the wrong way to go. Our democracy desperately needs more sunshine, not more darkness.

Lisa Graves is the executive director of True North Research and former deputy assistant attorney general in the Office of Legal Policy at the U.S. Department of Justice. This column was produced for The Progressive magazine and distributed by Tribune News Service.

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Dont open the door further to dark money: Our democracy needs more sunshine - Milford Daily News

To protect individual rights, the framers of the United States Constitution added ten amendments to the document, which came into force in 1792, three years after the Constitution itself did. These amendments are collectively named the Bill of Rights.

Arguably, the First Amendment is also the most important to the maintenance of a democratic government. It states that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The first part of that statement reflects the framers experience with the long history of religious strife in Europe. They realized that religious discord can be explosive and cause tremendous disruption in politics. It would be doubly so if one religious sect were favored over all others. So, they ensured that federal government cannot interfere in the citizens practice of their religion.

The freedoms of speech, press, assembly and the right to petition the government and seek redress of grievances proclaim that citizens have the right to call the government to account. Freedom of speech and press allows citizens to communicate their ideas verbally and in writing, while freedom of assembly lets them publicly express a common interest. The right to petition allows citizens to point out to the government where it did not follow the law, to seek changes, as well as damages for such missteps.

Of course, there are limits to these freedoms. One may not force the tenets of his or her religion on those who do not observe those beliefs. Harmful speech, such as yelling fire in a crowded room, is not protected, nor is a written lie that causes harm. As well, gatherings must be peaceful. Destruction of the property of others is not protected by the First Amendment.

Liberty is to faction [political parties or movements] what air is to fire, an aliment without which it instantly expires, said James Madison, the principal framer of the Constitution. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.

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U.S. Institutions - Why is the First Amendment Important?

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Published in NH Bar News(4/21/2021)

In the past several years a number of religious accommodationcases have reached the U.S. Supreme Court, an interesting trendwhere the religious beliefs and rights of individuals andbusinesses conflict with other fundamental rights of employees,students, and even the public. The cases have receivedtremendous publicity and have stirred rancorous debate inclassrooms, bar rooms, and on talk radio. The social mediasoundbites, however, sometimes miss the subtle and not-so-subtlelegal arguments along this collision course.

In 2014, the Supreme Court decided the case of Burwell v.Hobby Lobby Stores, Inc., 573 US 682 (2014) ruling that HobbyLobby's owners' religious beliefs trumped theiremployees' rights to health insurance coverage forcontraception as required by the Affordable Care Act. TheCourt ruled 5-4 that the Religious Freedom Restoration Act of 1993allowed the for-profit company to deny this coverage to itsemployees.

This was followed by Masterpiece Cakeshop, Ltd. v. ColoradoCivil Rights Commission, 584 US ___ (2018), a 7-2 decisionwhich permitted a bakery owner to refuse to bake a cake for a gaycouple's wedding. However, rather than deciding whetherfree exercise or free speech rights are violated by forcing abusiness to provide services to a couple with whose lifestyle theowners do not agree, the Court ruled for Masterpiece Cakeshopconcluding that the Colorado Civil Rights Commission demonstratedimpermissible hostility to religion in finding in favor of thecouple. Noteworthy is that by this time the Supreme Court hadaffirmed in Obgerfell v. Hodges, 576 U.S. 644 (2015) thatgay couples have the fundamental right to marry.

Supreme Court scholar Erwin Chemerinsky in his analysis ofMasterpiece Cakeshop opined that "allantidiscrimination statutes pose a tension between equality andliberty." More precisely, "Is a business'sfreedom to choose its customers [or employees] more important thanthe government's interest in stopping sexual orientationdiscrimination?"

By 2020, the Court had also decided Bostock v. ClaytonCounty, GA, 140 S.Ct. 1731 (2020) ruling that Title VIIprohibits employment discrimination based on lesbian, gay, bisexualand transgender (LGBTQ) status.

Last year, in Our Lady of Guadalupe School v.Morrissey-Berru,140 S.Ct. 2049 (2020) the Court, heldthat the "ministerial exception" which was established inthe Hosanna-Tabor Evangelical Lutheran Church &School v.EEOC, 565 U.S. 171 (2012) precluded twoteachers, employed by different Catholic schools, from pursuingemployment discrimination claims.The ministerial exceptionbars ministers from suing churches and other religious institutionsfor employment discrimination. Although the teachers were notordained ministers, the schools in the consolidated cases arguedthat the exception nonetheless applied because the teachers playeda key role in teaching religion to their students. TheSupreme Court, in a 7-2 vote, agreed.

Things got more interesting when the Equal EmploymentOpportunity Commission ("EEOC") proposed an update to its2008 guidance on religious discrimination in the workplace.The commission voted 3-2 (with the two democratic membersobjecting) to finalize it on January 15, 2021 just days beforePresident Biden took office. The EEOC was clear that theguidance was being updated in large part due to the Our Lady ofGuadalupe decision.

The EEOC routinely issues guidance, which does not have theforce of law, on a number of workplace issues. Guidance isroutinely relied upon by employers, courts, and investigatorsreviewing charges of discrimination in interpreting the federalanti-discrimination laws.

The Biden EEOC, with new leadership, could further modify orwithdraw the proposed guidance or simply refocus its enforcementefforts differently.

On March 5, the Massachusetts SJC ruled in DeWeese-Boyd v.Gordon College that the "ministerial exception" doesnot apply to an associate professor of social work at a privateChristian liberal arts college, and she should be allowed to pursueher claims that the school retaliated against her for hervocal opposition to the school's LGBTQ+ policies. The SJCspecifically noted that the facts of Hosanna Taborand Our Lady of Guadalupe were "materiallydifferent" in that DeWeese-Boyd was neither hired to be aminister or a teacher of religion in a primary or secondary schoolenvironment as in those cases. In Hosanna-Tabor, theemployer was an Evangelical Lutheran church and school, and theplaintiff was a "called" teacher, who had undergoneformal religious training and accepted a formal call to religiousservice. She and her employer both viewed her as a minister,and her employment documents described her as such. The twoteachers in Our Lady of Guadalupe worked in an elementaryschool where they taught all subjects, including religion. Theywere expected not only to teach the faith to their students butalso to guide them "by word and deed" toward the goal ofliving their lives in accordance with the Catholic faith. Theyprayed with the students, attended Mass with them, and prepared thechildren for participation in other religious activities.

As a Professor, DeWeese-Boyd was not ordained or commissioned,not held out as a minister, was not required to undergo formalreligious training, pray with her students, participate in or leadreligious services, take her students to chapel services, or teacha religious curriculum.

The SJC also rejected Gordon College's argument that all itsemployees should come under the ministerial exception as too broadan interpretation which would allow religious organizations tosimply ignore secular anti-discrimination laws.

The Supreme Court will likely see more cases of this nature inthe coming years as both religious and non-religious organizationsgrapple with the inevitable tug that comes with balancing therights of all.

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.

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First Amendment Versus The Civil Rights Act: A Clash Of Titans - Employment and HR - United States - Mondaq News Alerts

When 17-year old Darnella Frazier used her cell phone on May 25, 2020, to record the murder of George Floyd, a horrifying episode which, viewers across the globe know, lasted nine minutes and 29 seconds, she probably did not stop to think that she was exercising her First Amendment right of freedom of expression and, perhaps, an element of freedom of the press. As the guilty verdict in the murder trial of Minneapolis policeman Derek Chauvin revealed, she was filming not only an American tragedy in real time, but the most impactful civil rights footage since the Civil Rights Movement.

History and the worlds of journalism and criminal justice are indebted to Frazier for summoning the presence of mind to record the excruciating murder of Mr. Floyd. Because of her courage, millions of Americans everywhere have borne witness to the most direct and compelling evidence of the commission of a crime that they likely will ever see. Her recording may be a catalyst for justice in much the same way cameras captured the civil rights sit-ins at the Woolworths lunch counter in Greensboro, N.C., in 1960, and the gruesome reality of Sheriff Bull Connors attacks on peaceful protestors in Birmingham, Ala., in the early 1960s.

Facts matter, President John Adams was fond of reminding listeners. Indeed, facts matter to our democracy, which requires truth and evidence to create sound policies, programs and laws. Facts matter, as well, to jurors and all those who participate in the criminal justice system. They should matter to those interested in truth and accuracy in our daily conversations and representations.

Photos, like news stories, can inform the citizenry, facilitate engagement and participation in public affairs and usher in social change. Photos and news reports influenced public opinion about the practice and impact of racial discrimination in our nation. News footage of police violence perpetrated against peaceful Black protestors and marchers in the south in the 1960s, changed the nations perception of the Civil Rights Movement and generated critical support for the passage of such landmark legislation as the Civil Rights Act of 1964 and the Voting Rights Act of 1965.

Ms. Fraziers video of Officer Chauvin driving his knee into the neck of Mr. Floyd may prove as useful to meaningful reform of law enforcement techniques and practices as the footage of race discrimination was to the congressionally enacted reforms to civil rights law in the 1960s. Let us hope so.

The framers of our Bill of Rights had in mind the importance of facts and their illumination of issues for purposes of public understanding and discussion when they drafted the First Amendments free speech and free press clauses. The founders characterized the press clause, in the words of Thomas Jefferson, as the peoples right to know. Without knowledge of governmental activities that can be best supplied by a free, independent and constitutionally protected press, the right of the people to formulate opinions, provide critiques and criticisms, and even participate in public affairs would be greatly diminished. The press fulfills an essential role in our democracy, for it serves the governed, Justice Hugo Black wrote in the Pentagon Papers case, not the governors.

Citizens enjoy, by virtue of freedom of speech the right to speak and listen, which entails the right to record or film governmental agents in the exercise of their roles and duties. It has become commonplace for private citizens, like professional journalists, to record and film officials speeches and announcements, on the steps of government buildings, in parks and on the public streets. That free speech interest also encompasses a free press component as cellphones and the wonders of technology have broadened the sphere of photojournalism and made every citizen a photographer, able to share breaking news with the masses, indeed, the entire planet, as Ms. Fraziers recording demonstrates.

Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality.

Send questions about the Constitution to Dr. Adler at NDWTPColumn@gmail.com and he will attempt to answer them in subsequent columns.

This column is provided by the North Dakota Newspaper Association and Humanities North Dakota.

The Supreme Court has not drawn a clear, bright line distinguishing an organized press, which at the time of the founding enjoyed a special, protected status under the Free Press Clause, from others who take photos of events, write blogs and pamphlets, or otherwise seek to communicate through the spoken or written word, such as scholars and writers for underground newspapers. Perhaps its unnecessary. Regardless, on May 25, 2020, Darnella Frazier exhibited the instincts of the best reporters. She stood her ground and, with her cellphone, recorded history that may change a nation.

Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality.

Send questions about the Constitution to Dr. Adler at NDWTPColumn@gmail.com and he will attempt to answer them in subsequent columns.

This column is provided by the North Dakota Newspaper Association and Humanities North Dakota.

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A cellphone recording, First Amendment rights and a guilty verdict - Williston Daily Herald

The First Amendment typically regulates expressive activity in public spaces through what has come to be known as forum analysis. In a traditional public forum like sidewalks and parks or in a designated public forum opened to the general public for expressive activity the government may regulate the content of a speakers message only if the regulation is narrowly tailored to serve a compelling interest. Because viewpoint discrimination is inconsistent with the First Amendment, most regulations subject to this strict scrutiny standard are struck down. On the other hand, the government may restrict expressive activities in a non-public forum as long as those restrictions are not manipulated to suppress disfavored messages.

In John K. MacIver Institute for Public Policy, Inc. v. Tony Evers, a self-described news service affiliated with a right-leaning think tank argued that forum analysis is a freedom-of-speech doctrine governing only a private speakers access to government property. According to the MacIver Institute, the First Amendments free-press clause requires courts to apply strict scrutiny any time a reporter is excluded from a press briefing.

The Seventh Circuit disagreed, holding that forum analysis applies equally to claims under the First Amendments freedom-of-press and free-speech clauses. Noting a host of problems that would arise if strict scrutiny applied any time members of the media were excluded from a private office or meeting room in a government building, the court concluded that the Constitution affords reporters no greater right of access to information or government spaces than that afforded to the general public.

Applying traditional forum analysis, the court held that Wisconsin Governor Tony Evers did not violate the Constitution by excluding the MacIver Institute from a non-public forum like a limited-access press conference. The governors office utilized content-neutral criteria to determine which media outlets were invited to limited-access press events, and the record revealed no evidence that it manipulated those content-neutral criteria to exclude disfavored conservative media outlets.

The MacIver Institute decision should give government officials, public universities, and other public entities comfort that they may impose reasonable attendance restrictions on press events as long as those restrictions are based on content-neutral criteria like circulation, longevity, and independence. And it settles any doubt in the Seventh Circuit about whether traditional forum analysis governs claims under the First Amendments freedom-of-press clause.

Excerpt from:
Seventh Circuit: Forum Analysis Applies to First Amendment's Freedom-of-Press Clause - Lexology