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Union officials took full union dues from nonmember officer without consent, then ignored requests to return illegally-seized money

Cleveland, OH (August 25, 2021) Cuyahoga County probation officer Kimberlee Warren is suing the Fraternal Order of Police (FOP) union in her workplace, charging union officials with breaching her First Amendment right as a public employee to refuse to support union activities. She is receiving free legal representation from National Right to Work Legal Defense Foundation staff attorneys, in partnership with attorneys with the Ohio-based Buckeye Institute.

Foundation staff attorneys contend that FOP union officials ignored her constitutional rights recognized in the landmark 2018 Janus v. AFSCME U.S. Supreme Court decision, which was argued and won by Right to Work Foundation staff attorneys.

In Janus, the Justices declared it a First Amendment violation to force any public sector employee to pay union dues or fees as a condition of keeping his or her job. The Court also ruled that public employers and unions cannot take union dues or fees from a public sector employee unless they obtain that employees affirmative consent.

The federal lawsuit says that Warren was not a member of the FOP union before the Janus decision in June 2018, but FOP union bosses collected union dues from her wages without her consent. According to the complaint, this continued until around December 2020, when Warren notified union officials that they were violating her First Amendment rights by taking the money and demanded that the union stop the coerced deductions and return all money that they had taken from her paycheck since the Janus decision.

When the deductions ended, FOP chiefs refused to give back the money that they had already seized from Warren in violation of her First Amendment rights. They claimed the deductions had appeared on her check stub and thus any responsibility to cease the deductions fell on her even though to her knowledge they had never obtained permission to opt her into membership or to take cash from her paycheck in the first place.

According to the lawsuit, Warren also asked FOP bosses to provide any dues deduction authorization document she might have signed. FOP officials rebuffed this request as well.

The High Court ruled in Janus that, because all activities public sector unions undertake involve lobbying the government and thus are political speech, forcing a public employee to pay any union dues or fees as a condition of keeping his or her job is forced political speech the First Amendment forbids.

Union bosses were permitted by state law before the Janus ruling to seize from nonmember workers paychecks only the part of dues they claimed went toward representational activities. FOP union officials took this amount from Warren prior to Janus. However, they furtively designated her as a member following the decision, and began taking full dues, deducting even more money from her wages than they did before Janus despite the complete lack of any consent.

Warren is now suing the FOP union in the U.S. District Court for the Northern District of Ohio. Her lawsuit seeks the return of all dues that FOP union officials garnished from her paycheck since the Janus decision was handed down. It also seeks punitive damages because FOP showed reckless, callous indifference toward her First Amendment rights by snubbing her refund requests.

Warrens lawsuit comes as other Foundation-backed lawsuits for employees defending their First Amendment Janus rights seek writs of certiorari from the Supreme Court. This includes cases brought for Chicago and New Jersey public educators which challenge window periods that severely limit when they and their fellow educators can exercise their First Amendment right to stop union dues deductions, sometimes to periods as short as ten days per year. In a California federal court, Foundation staff attorneys are also aiding a University of California Irvine lab assistant in fighting an anti-Janus state law that gives union bosses full control over whether employers can stop sending an employees money to the union after that employee exercises his or her Janus rights.

All over the country, union officials are stopping at nothing to ensure they can continue ignoring workers First Amendment Janus rights and continue siphoning money from the paychecks of dissenting employees, commented National Right to Work Foundation President Mark Mix. After Janus was handed down, FOP union officials in Warrens workplace could have come to her to attempt to get her to support the union voluntarily, but tellingly instead they began surreptitiously siphoning full dues out of her paycheck without her consent in direct contravention of the Supreme Court.

Despite her repeated requests, FOP bosses have continued to trample Warrens Janus rights, and Foundation staff attorneys are fighting to stop this gross injustice against her and punish FOP bosses for their brazen behavior, Mix added.

The National Right to Work Legal Defense Foundation is a nonprofit, charitable organization providing free legal aid to employees whose human or civil rights have been violated by compulsory unionism abuses. The Foundation, which can be contacted toll-free at 1-800-336-3600, assists thousands of employees in around 250 cases nationwide per year.

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Cuyahoga County Probation Officer Hits Union with Federal Lawsuit for Years of Unconstitutional Dues Seizures - National Right to Work Foundation

Religious Freedom: A Standard or an Enigma?

By Teresa Smallwood Postdoctoral Fellow & Associate Director, Public Theology and Racial Justice Collaborative

When the Danbury Baptist Association wrote President Thomas Jefferson on October 7, 1801 regarding their desire for the separation of church and state, they were advancing a position in favor of private, individualized faith expressed without governmental intervention. In 1801 the stakes could not have been higher because the establishment clause was only a decade old and there was a flood of enactments across the colonies to preserve their status as independent sovereigns. But how that standard would be implemented and enforced was a worrisome contention for many people of faith. Jeffersons reply on January 1, 1802 reverently acknowledged the separation and vowed that there would be a wall of separation between church and state, a phrase he borrowed from Roger Williams, a London minister who greatly influenced the colonies in favor of religious liberty.

In our present context culturally, socially, economically, and legally, I posit that the wall of separation is crumbling down. Despite groups like Americans United for the Separation of Church and State, founded to preserve the constitutional principle of church-state separation as the only way to ensure religious freedom for all Americans, it is impossible to see a true separation between church and state in the sense of the letters exchanged over two centuries ago. In fact, the notion of religious freedom or religious liberty is hard to discern.

In the same breath, the First Amendment to the US Constitution admonishes that Congress shall make no law respecting an establishment of religion and simultaneously it declares that everyone should have the right to freedom of religion. In effect, this is a conundrum when one considers the United States Supreme Courts decision in Masterpiece Cupcake Shop, LTD., et. al. v. Colorado Civil Rights Commission. At issue was the shop owners right to reject customers in light of his religious beliefs. He claimed his deeply held religious beliefs would not abide his making a wedding cake for a same-sex couple. The Supreme Court sided with the owner. Despite what I could say about the integrity of the decision, there is no way to avoid concluding that the US Supreme Court has been slowly eroding religious freedom to the point where the wall of separation is like Humpty Dumpty having a great fall.

For arguments sake, perhaps the fair thing to do is to advance the notion that marriage is held sacred by non-church-going people as well. Same-sex couples have religious beliefs. In fact, I would venture to say that people in covenant relationships who go to the lengths to repeat vows and celebrate with traditionally tiered wedding cakes do so in support of deeply held religious beliefs, whether they acknowledge a God concept or not. The Supreme Court never mentioned the fact that the analysis goes both ways.

Moreover, if that is the case, siding with one litigant over the other in terms of religious beliefs may look like establishment. It, however, points to a wider problemone that we as Americans, particularly people of color, must seriously consider: What happens when a case reaches the United States Supreme Court to decide whether the January 6, 2021 insurrection was employed and executed based upon deeply held religious beliefs?

Lets face it: Some of the mobsters carried Bibles in lockstep with other mobsters carrying nooses. Are we in danger of a backdoor approval of the return to chattel slavery based upon deeply held religious beliefs? The Apostle Paul did say slaves, obey your masters, did he not? The stacking of the Supreme Court with ultra-conservative jurists makes the question linger in the air.

Voter suppression, police brutality, mass incarceration, and economic disparities all point to a corrosion of basic democratic values not the least of which is religious freedom. Freedom from tyranny and freedom to exercise ones right to deeply held religious beliefs should not create a conflict so convoluted that the judiciary has to respect the establishment of someones religious belief as a means to an end while concomitantly abridging anothers right to the same freedom. Religious freedom should intimate a hands-off approach that the Supreme Court avows at all costs. That was the pledge Jefferson made. A wall of separation is a shield from contact, either literal or perceived. However, for decades the trend has been anything but hands-off.

Burwell v. Hobby Lobby, for example, is one case where the wall of separation is nowhere to be found. In a 5-4 decision, the US Supreme Court Justice Samuel A. Alito Jr. allowed a for-profit company to deny its employees health coverage for contraception based on the company owners religious beliefs. Religious objections aside, these employees would be entitled to these health benefits. The Religious Freedom Restoration Act was the operative legislation in this court opinion. The 1993 Act as applied to corporations creates a cyborg-ish effect. There is a danger that the inverse nature of religious freedom jurisprudence turns on itself in such a way that the freedom to practice ones religion trumps the scrutiny of every other discriminatory eventuality. The totalizing impact of this could reverse the gains Americans have made in a democracy that once valued religious freedom as much as it once valued the wall of separation. The enigmatic reality is that walls are overrated.

By Jeff Johnston Culture and Policy Analyst, The Daily Citizen

Chase Windebank was a senior at Pine Creek High School in Colorado Springs, Colorado. Beginning in his freshman year, he led a small group of students who wanted to pray for their school and the needs of fellow classmates during non-instructional time. One day, a school official called him in and told him the group could no longer meet because of the separation of church and state.

A year later, the school dropped its ban on student religious discussion and expression during free time, after Alliance Defending Freedom (ADF), a legal aid group advocating for First Amendment rights, filed a lawsuit against the district.

Think stories like this are unusual? Across the nation, from the schoolhouse to the military to the medical field, religious freedom is under fire. Houses of worship and ministries have felt the heat from those who work to eliminate religious expression from the public arena, often under the misguided banner of separation of church and state.

The largest legal organization in the U.S. solely devoted to defending religious liberty is First Liberty Institute. In its annual report, Undeniable: An Inside Look at the Cases, Controversies and Unrelenting Attacks on Religious Liberty in America, the organization lists more than 1,400 cases, mostly from the past 20 years, demonstrating the deep antipathy from many toward religion and people of faith.

Some of the cases are well known:

Others have received less publicity. A synagogue in Woodcliff Lake, New Jersey filed suit after the city took land from the congregation and blocked its efforts to relocate for ten years. The Equal Employment Opportunity Commission (EEOC) sued UPS for their policy banning drivers from having beards on behalf of Rastafarians, Muslims, and Sikhs whoms facial hair is part of their culture. A New York nurse was told she must participate in a late-term abortion, which was against her religious beliefs, and was threatened with termination and loss of her nursing license if she refused to do so.

Theres a reason that religious liberty is called our first freedom, and theres a reason people and religious legal aid groups continue to fight to preserve and protect it. Not only do the two clauses protecting religion from government incursion make up the first freedom listed in the bill of rights but freedom of religion is vital because it protects our deepest thoughts and beliefs as well as our expression of them in our daily lives.

Theres a huge misunderstanding that somehow the First Amendment places a wall of separation between church and state an unfortunate phrase used by Thomas Jefferson in a letter to the Danbury Baptist Association, in Connecticut. To deliberately mix metaphors, the wall of separation has been used as a sledgehammer, especially in recent years, against churches and people of faith.While some complain that the so-called wall of separation is crumbling, the truth is it has grown thicker and higher over the decades, threatening to crush our first freedom.

The phrase is not found in the Constitution, nor is it in the Bill of Rights. If the Founders had wanted to, they could easily have included a wall of separation. But as University of Chicagos Professor of Law Philip Hamburger argues in Separation of Church and State they strove to create something new: real religious liberty, without state overreach and control. They said that Congress could not establish a national church, nor could it prohibit the free exercise of religion.

And that free exercise of religion isnt just about private worship or individualized faith, it includes the freedom of individuals and different faiths to exercise belief and conviction in the public arena through their speech and actions.

While the phrase separation of church and state has become part of our common language, Hamburger explains how this erroneous idea grew and developed, replacing the First Amendment protection of religious liberty. As such, its seen by many to be a freedom from religion in the public square.

Hamburger writes, Yet the idea of separation of church and state was very different from the religious liberty desired by the religious dissenters whose demands shaped the First Amendment He adds that the simplistic metaphor of separation is opposed to the union of church and state, but that union and separation are over-generalizations between which lie much middle ground.

As opponents of religious freedom have tried to use the so-called wall to penalize bakers, florists, coaches, nurses and others, courts have, thankfully, begun pushing back against the complete removal of religion from public life. For example, the Supreme Court, in Masterpiece Cakeshop v. Colorado Civil Rights Commission, ruled in favor of Jack Phillips, saying the state showed animosity and discriminated against his convictions.

More recently, the Supreme Court has struck down onerous state government COVID decrees that shut down worship, treating churches less favorably than businesses, in cases such as Roman Catholic Diocese of Brooklyn v. Cuomo and Tandon v. Newsom. And in June 2021 the Court ruled 9-0, in Fulton v. Philadelphia, that the city had violated the First Amendment free exercise rights of Catholic Social Services, allowing them to continue placing children in loving homes with a mother and father.

People of faith have the right to share and live out our beliefs in the public arena. Even as assaults on religious liberty have accelerated, lets hope that courts continue to protect our cherished first freedom.

This article is part ofDivided We Falls Constitutional Questions series, covering a range of political topics fundamental to the U.S. Constitution and democratic institutions. Through this series, we ask constitutional scholars, journalists, elected officials, and activists to discuss how these ideals are and are not implemented today. If you want to read more pieces like this, clickhere.

Teresa Smallwood

Rev. Dr. Teresa L. Smallwood is a Postdoctoral Fellow and Associate Director of the Public Theology and Racial Justice Collaborative at Vanderbilt Divinity School. She is licensed and ordained to public ministry in the Baptist tradition and is presently an active member at New Covenant Christian Church in Nashville, TN where she serves as Social Justice Minister. She holds a BA degree from the University of North Carolina at Chapel Hill, a JD from North Carolina Central University School of Law, a Master of Divinity degree from Howard University, and a PhD degree from Chicago Theological Seminary.

Jeff Johnston

Jeff Johnston is Focus on the Familys culture and policy analyst for The Daily Citizen. He researches, writes, and speaks about education, marriage, LGBTQ issues, and healthy sexuality. After struggling for years to reconcile his faith with his same-sex attractions and sexual addiction, Johnston now shares his journey of healing and change through Gods transforming power. Johnston has been interviewed by top media outlets including CBS Sunday Morning, The New York Times, U.S. News and World Report, Rolling Stone, and more. He graduated from San Diego State University and lives in Colorado Springs with his wife and three sons.

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The Conundrum of the Separation of Church and State Divided We Fall - Divided We Fall

Still more from the free speech and social media platforms symposium in the first issue of ourJournal of Free Speech Law; you can read the whole article (by Daphne Keller, formerly at Google and now at Stanford)here, but here's the abstract [UPDATE: link fixed]:

Discussions about platform regulation increasingly focus on the "reach" or "amplification" that platforms provide for illegal or harmful content posted by users. Some have proposed holding platforms liable for amplified content, even if the platforms are immunized for simply hosting or transmitting the same content. This article discusses the serious challenges of that regulatory approach. It examines legal models that would (1) increase platform liability for amplifying currently illegal content, (2) increase platform liability for amplifying harmful but currently legal content, or (3) create content-neutral restraints on amplification. It suggests, using both U.S. First Amendment precedent and comparison to recent EU legal developments, that the first two approaches would raise serious concerns. It identifies potentially more viable ways forward, however, in content-neutral approaches grounded in privacy or competition law.

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Daphne Keller, "Amplification and Its Discontents: Why Regulating the Reach of Online Content Is Hard" - Reason

The Foundation for Individual Rights in Educationisnt satisfied with UNC-Chapel Hills answers to lingering questions about the schools investigation of a leaked donor agreement.

Earlier this month, Policy Watch reported the investigation into the schools contract with mega-donor Walter Hussman included reading faculty e-mails and questioning professors who have been critical of the Arkansas publisher and alumnus, who pledged $25 million to the schools journalism school in 2019.

Hussmans behind-the-scenes lobbying against the hiring of acclaimed journalist Nikole Hannah-Jonesdrew new attention to his influence at the university and was a major factor in Hannah-Jonesturning down an eventual tenure offer from the school and instead going to Howard University. When the donor agreement between Hussman and the school was published by the News & O

bserver, the school launched an investigation into the leak.

As part of the ongoing investigation, faculty have been made aware that the contract was on the schools server Database for Advancing our Vision of Institutional Excellence (DAVIE) server for months, where hundreds of people would have potentially had access to it.

FIRE previously questioned why the investigation appeared to be centering on professors who had been critical of Hussmans behavior and the school allowing him access to a confidential hiring process. Those faculty members do not appear to have had access to the contract of the server on which it was available.

In a new letter this week, FIRE said the schools explanation that it has an interest in investigating leaks to keep such agreements confidential is inadequate.

From that letter:

Assuming that the disclosure of the Hussman donor agreement did, in fact, breach university policy, an investigation into this alleged policy breach should be reasonably limited to those who had actual access to the disclosed document before its disclosure to the Raleigh News & Observer. Here, UNC has instead reportedly targeted faculty members, including journalism professors Deb Aikat and Daniel Kreiss, who did not have regular, pre-disclosure access to the Hussman agreement, as explained in our letter of August 4.

The breadth of UNCs search of faculty email accounts has not only violated its own policy, but it has also imperiled academic freedom and individual privacy.

First, UNCs probe into the email accounts of those who had no pre-disclosure access to the Hussman agreement is not reasonably necessary to acquire the information needed to investigate that disclosure. To the extent an email probe was necessary at all, an investigation targeted at that which is reasonably necessary instead would focus on, for example, the administrators, development personnel, or administrative staff who had actual access to the document in question in UNCs Database for Advancing our Vision of Institutional Excellence (DAVIE) before the document was disclosed to the News & Observer.

Second, UNCs probe will cause a chilling effect on faculty speech and academic freedom. In addition to the chill already caused by UNCs inquiry and its requests to meet with certain outspoken faculty members, as discussed in our previous letter, faculty will now experience further chill, knowing that their emails are potentially being monitored by university administrators. This chill will not only affect conversations critical to the university, but will also affect conversations related to research and pedagogy.

Research and pedagogyissues at the core of the traditional right to academic freedomoften cover controversial topics, and faculty members may fear retaliation if universityadministrators have access to personal notes and conversations related to academic pursuits.

It continues to appear that UNC has targeted outspoken faculty, including Kreiss and Aikat, not because it credibly believes these professors were involved in disclosure of the Hussmanagreement, but because they publicly criticized the university. As explained in our previous correspondence, nothing indicates Kreiss or Aikats criticism was based on access to confidential information not already obtained by the media.

Read the full letter here.

In the letter, FIRE asks for more information about how the investigation is being conducted, including whether those with access to the DAVIE server were interviewed. The group has asked for a response by August 25.

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Free speech group: Ongoing UNC leak investigation violates First Amendment, creates "chilling effect" | The Progressive Pulse - The...

On Aug. 8, a federal judgeagreedto halt enforcement of a Florida law that prohibits businesses from requiring patrons or customers to provide any documentation certifying COVID-19 vaccination or post-infection recovery to gain access to, entry upon, or services from the business operations in this state. The company that owns Norwegian Cruise Line brought the claim, arguing, among other things, that the law violates the First Amendment.

While the case may seem attenuated from both media law and technology, it actually grapples with an emerging issue weve been covering the extent to which nominally economic regulations that unduly burden protected speech are constitutional. That question wasfront-and-centerin the Trump administrations efforts to use emergency economic powers to shutter the communications platforms TikTok and WeChat by effectively prohibiting other businesses from providing them certain services.

The cruise line decision, by Judge Kathleen M. Williams of the U.S. District Court for the Southern District of Florida, is a pretty by-the-book application of First Amendment doctrine. She first determines that the law is content-based because businesses are free to require COVID-19testresults and othernon-COVID vaccination information, among other things.

She then rejects Floridas argument that, because the law only prohibits a single act, conditioning service on presenting a vaccine document, it is merely a bar on business-related conduct, not a restriction on speech. As noted, thats effectively the argument the federal government made in the TikTok case that prohibiting internet services from, for instance, hosting TikTok content, was merely a business-to-business restriction that did not trigger First Amendment scrutiny. (In ourfriend-of-the-court brief, we noted that business-to-business transactions, like buying paper or ink, are a matter of survival for media entities.)

Judge Williams then directly addresses exactly that concern that simply labeling a law as economic regulation could permit the state to disfavor certain types of speech, which has always been of significant concern for press rights, particularly in a string of U.S. Supreme Court cases dealing with discriminatory taxation schemes and beginning with the Huey Long-eraGrosjean v. American Press Co.

By characterizing certain laws as regulation of economic conduct, Judge Williams wrote, laws that restrict bookstores fromsellingbiographies or prohibit video rental shops fromrentingdocumentaries also could evade First Amendment scrutiny under the logic that they merely affect what businesses cannotdo and not what they may or may not say, despite the significant burdens they impose on protected expression.

That is exactly the concern we identified in the TikTok and WeChat cases, and one that continues to percolate in various proposals to regulate content moderation online.

Well continue to follow this one.

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy combining the law, policy analysis, and public education to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Mailyn Fidler.

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Cruise ships, COVID, TikTok and the First Amendment - Reporters Committee for Freedom of the Press