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A federal judge has authorized an immediate appeal of herdecision to allow PEN America to proceed with claims that President Trump violated the First Amendment by retaliating against journalists based on their critical coverage.

In a decision issuedThursday, U.S. District Court Judge Lorna Schofield in New York ruled that the dispute presented legal questions that lent themselves to appellate review -- including whether a judge could issue adeclaratory judgment against a sitting President over his discretionary conduct.

Schofield said that question implicates constitutional considerations, and that its resolutionwould materially advance the ultimate termination of the litigation.

The ruling paves the way for the Department of Justice to as the 2nd Circuit Court of Appeals to intervene inthe matter.

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The fight dates to 2018, when the organization PEN America sought a declaratory judgment that Trump violated the constitution by retaliating against journalists based on theirviewpoints, and by threatening the media in a way that could chill free speech.

PEN America also sought an injunction prohibiting the federal government from taking action against mediaorganizations and journalists for their criticism of the White House.

Among other claims, PEN Americaalleged that the administration wrongly revoked the press credentials of CNN's JimAcosta after a contentious November 2019 press conference. (A federal judge in Washington, D.C. subsequently ordered the government to restore Acosta's press pass.)

Schofield ruled in March that PEN America was entitled to pursue its request for adeclaratory judgment. But she said the organization couldn't proceed with its request for an injunction, given that Trump has discretionary authority over matters like securityclearances.

The Department of Justice then asked Schofield for permission to appeal to the 2nd Circuit.

The administration said it wanted to raise several arguments, including whetherTrump can be subjected to a lawsuit seeking a declaratory judgment based on non-ministerial actions he performed in an official capacity.

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Judge Authorizes Appeal In PEN America's First Amendment Fight With Trump 10/05/2020 - MediaPost Communications

On Thursday, U.S. District Court Judge Stephen Wilson ordered the City of Los Angeles to pay the National Rifle Association (NRA) close to $150,000 over a 2019 ruling on a city ordinance aimed at negatively affecting some city workers who are members of the NRA.

City Ordinance 186000 specifically requires that any prospective contractor with the city must disclose all contracts or sponsorships with the NRA. The ordinance noted several mass shootings, including the Sandy Hook School shooting in 2012, the Las Vegas Mandalay Bay shooting of 2017, and both the Pittsburgh and Thousand Oaks shootings of 2018, and tried to tie them to the NRA by showing how their support for less strict gun laws led to those incidents. The ordinance also noted how many of those cities would later enact greater gun control methods.

It concluded that since Los Angeles enacted ordinances and position in favor of greater gun control, it would make sure city funds wouldnt go those with ties to the organization and would halt city contractor business with NRA members and supporters.

The Citys residents deserve to know if the Citys public funds are spent on contractors that have contractual or sponsorship ties with the NRA, read the ordinance. Public funds to such contractors undermines the Citys efforts to legislate and promote gun safety.

The NRA immediately sued Los Angeles after the ordinance went into effect in April 2019. While the city, as well as ordinance sponsors Mayor Eric Garcetti and Councilman Mitch OFarrell, had expected to win, the NRA made a hard case for the ordinance being in violation of First Amendment rights, mainly freedom of speech.

In December, Judge Wilson agreed with the NRA and ruled against Los Angeles, halting the ordinance for good and allowing contractors who are members of the NRA to once again be freely allowed to get contracts with the city.

The text of the ordinance, the ordinances legislative history, and the concurrent public statements made by the ordinances primary legislative sponsor evince a strong intent to suppress the speech of the NRA, Judge Wilson wrote in his ruling. Even though the Ordinance only forces disclosure of activity that may not be expressive, the clear purpose of the disclosure is to undermine the NRAs explicitly political speech.

The City has no interest in the suppression of political advocacy regardless of how distasteful it finds the content. The Ordinance is therefore incompatible with the Constitution, and Plaintiffs are likely to be successful on the merits of their First Amendment speech claims.

Los Angeles stayed quiet after the ruling, neither giving a statement on the ruling nor attempting to pass an altered ruling in 2020.

Free speech advocates, affected contractors, and the NRA had the opposite reaction and celebrated the ruling.

It was essentially a blacklisting for believing in a constitutional amendment, Charles Rogers, an NRA supporter and contractor with several cities in Southern California, told the Globe. I didnt even attempt anything in Los Angeles last year.

But its my belief and Im with a group that shares that belief. I shouldnt be shunned for it. But the city really did do it. Thank God for that lawsuit.

The NRA also responded: This is an important win for the NRA, our members, and all who believe in Americas constitutional freedoms. The ruling sends a powerful message to those government officials who would take any actions that are adverse to the NRA because they dislike its political speech.

However, a question lingered throughout much of 2020 over the matter of the NRAs legal fees, which came in close to $150,000.

Los Angeles, which is currently going through a fiscal emergency due to COVID-19 closings and the economic downturn, had long avoided paying the NRA, going as far as saying that the NRA had to pay it themselves.

But earlier this week Judge Wilson sided with the NRA again, ordering the city to give the NRA all money owed and finally closing the last remnant of the case for good.

I know the city is hurting, but its good to see a First and Second Amendment victory like this in a big city like LA, added Rogers. And that court ordered payment the other day? It will make them think twice about doing something like this in the future.

Evan V. Symon is the Senior Editor for the California Globe. Prior to the Globe, he reported for the Pasadena Independent, the Cleveland Plain Dealer, and was head of the Personal Experiences section at Cracked. He can be reached at evan@californiaglobe.com.

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Los Angeles Ordered To Pay NRA $150000 Over First Amendment Ordinance Violation - California Globe

In the first quarter of 2020, the total amount spent on lobbying,about $938 million, reached the highest on record, according to the Center for Responsive Politics. At least 3,200 companies, trade associations and other groups reportedtrying to influence the government's response to the pandemic, CRP said.

Many of the biggest spenders, according to CRP data, also received substantial relief from the CARES Act. The health sector, which spent $168 million on lobbying efforts, received$150 billion in coronavirus relief aid, according to Advisory Board. The airline industry, which spent $29 million on lobbying, received $32 billion in relief aid, according to the Peter G. Peterson Foundation, and agribusiness, which spent $38 million, received $19 billion in aid, CRP said.

"If you don't have a strategy to deal with Washington today, I don't care if you're a small business, a medium-sized business or large business, if you don't have a government affairs strategy, you are going to be left behind," said Paul Miller, a veteran lobbyist and partner at Miller Wenhold Capitol Strategies.

"The pandemic is a perfect example of that. If you didn't have somebody here with the relationship to speak for you, well, then you likely didn't get what you wanted or needed to help yourself," Miller said.

The lobbying industry is arguably the U.S. government's oldest profession and is protected by the First Amendment. Yet critics say it undermines the country's democracy by tilting the power to influence policy in favor of those with unlimited financial resources.

Nearly 12,000 active lobbyists in Washington, D.C., helped thousands of clients spend over $3.5 billion in 2019.

Jimmy Williams worked as a lobbyist from 2002 to 2010. Before that, he worked as a legislative staffer for nearly a decade. He said lobbyists were instrumental to his work on Capitol Hill. Even as a lobbyist, he felt that his expertise helped lawmakers, as they were often inundated and overworked.

But he said things changed when he moved from trade associations to K Street.

"It was financially rewarding, as I got paid a lot more. But at the same time, I was then beginning to figure out that people didn't give a damn about my knowledge of banking or of the real estate industry. It was all about checks. No one gave a damn about anything other than who I knew and how much it would cost for us to write checks to get into those offices, i.e., campaign donations," said Williams, who now lives on a South Carolina farm.

The symbiotic relationship between campaign finance and lobbying is often contested. According to Sheila Krumholz, CPR's executive director, "sending an army of lobbyists up to work Capitol Hill to follow that donation is kind of the one-two punch. You first give a donation, and you next have your lobbyist pay a call."

One study by The Sunlight Foundation examined 14 million records from 2007 to 2012,including on campaign contributions and lobbying expenditure, and found that for every dollar spent, the corporation received $760 from the government.

But many in the field say a lobbyist is not what people may think and instead works as a part educator and part lawyer.

The misconception about lobbyists is that "we walk around with bags of money and say, 'Vote our way' or 'Oppose this.' But it's not even close to the truth," said Marcie McSwane, owner of The McSwane Group.

"Everyone always says, 'Drain the swamp,' and [that] all these lobbyists who've been up there for so long are the worst," McSwane said. "We're not working against anyone. We're hoping to work for and improve the lives of people here in the States. We love our country."

Watch the video above to learn more about why lobbying exists.

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Lobbying in Q1 topped a record $938 million, but lobbyists say their profession is misunderstood - CNBC

From the public university's Diverse, Equity, and Inclusion Task Force (emphasis added):

Recommendation 9: Miami University should explore the adoption of a zero-tolerance anti-discrimination policy and strictly enforce its existing University policy on discrimination.

Miami University must be able to determine under what conditions employees can be terminated and students can be dismissed from the University if proven they have made discriminatory (e.g., racist, sexist, homophobic, etc.) comments.

Note: This recommendation assumes the accused party was afforded proper due process and an appropriate finder of fact determined discrimination occurred.

Rationale: As a public institution of higher education, Miami University should demonstrate moral courage when defending its interest in having an efficient and disruptive-free work environment. Student dismissal or employee termination should not be shied away from because of fear of First Amendment violations. Case law dictates that a balancing test regarding private citizen's 1st amendment right vs public institution interest in an efficient and disruptive-free work environment (Connick v. Myers, 461 U.S. 138, 1983; Dixon v. University of Toledo, 702 F.3d 269, 6th Cir. 2012; Locurto v. Giuliani, 447 F.3d 159, 2d Cir. 2006; Pickering v. Board of Education, 391 U.S. 563, 1968). The key legal factors (e.g., avoiding disruptions in regular operations, maintaining good working relationships among coworkers, avoiding erosion of working relationships dependent on confidence and loyalty, avoiding obstructions in employees' abilities to perform their work) favor Miami's case for an efficient and disruptive-free work environment.

Well, maybe the Diversity, Equity, and Inclusion folks have no "fear of First Amendment violations "and think "moral courage" consists of promoting "efficient and disruptive-free work environment" without regard to student and faculty speech rights; but the University ought to have some fear here:

[1.] Student First Amendment Rights: Any policy saying that "students can be dismissed from the University if proven they have made discriminatory (e.g., racist, sexist, homophobic, etc.) comments" would violate the First Amendment. The Diversity, Equity, and Inclusion Task Force may not "fear First Amendment violations," but the university, which will have to pay for those violations (and which presumably wants to comply with the law) should. Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995), expressly struck down a campus "discriminatory harassment policy" that banned allegedly bigoted speech (there, "verbal behavior that subjects an individual to an intimidating, hostile or offensive educational, employment or living environment by (c) demeaning or slurring individuals through written literature because of their racial or ethnic affiliation; or (d) using symbols, [epithets] or slogans that infer negative connotations about the individual's racial or ethnic affiliation").

The same would be true of any policy calling for discipline for "racist, sex, homophobic, etc." "comments." See also Matal v. Tam, 137 S. Ct. 1744 (2017) (reaffirming that, even within government-run programs, the government can't impose viewpoint-based restrictions on supposedly bigoted expression); Christian Legal Society v. Martinez, 561 U.S. 661 (2010) (reaffirming the protection of students' right to "express any viewpoint they wishincluding a discriminatory one," and stressing "this Court's tradition of 'protect[ing] the freedom to express "the thought that we hate"'").

[2.] Faculty First Amendment Rights: The rights of public university professors, as public employees, are more complicated, because the government as employer usually has more power to restrict employee speech than the government as college educator has over students. But courts have recognized that the government's power to punish faculty for speech in their research, public commentary, and even their teaching is still sharply limited.

Thus, for instance, in Hardy v. Jefferson Community College(6th Cir. 2001), the court held that a professor had a right to discuss offensive wordssuch as "nigger" and "bitch"in class, when that was "germane to the subject matter of his lecture." Likewise, in Levin v. Harleston(2d Cir. 1992), the court held that even "derogatory remarks about persons of certain racial or ethnic groups" (to quote Hardy's description of Levin) in letters to the editor and in journal articles were protected by the First Amendment. And Burnham v. Ianni(8th Cir. 1997) (en banc), recognized the right of faculty members to convey their views on campus outside class, even when some found that speech to be offensive.

Some restrictions on faculty speech may not violate the First Amendment, for instance when the speech appears unconnected to public debates (as in another portion of Dambrot). And high-level university administrators may be less protected from being removed from their administrative positions (though, if they're also faculty, they may still have a First Amendment right not to be removed from their faculty positions). That's what Dixon v. University of Toledo(6th Cir. 2012), the Toledo case to which the Task Force seems to be referring in the Recommendation 9 Details, held: An Associate Vice President for Human Resources could be removed for her speech, just as, say, a Governor's cabinet member can be removed by the Governor for his speech or political activity. (The Dixon court specifically cited the political appointee cases, such as Rose v. Stephens(6th Cir. 2002).)

[3.] Academic Freedom Guarantees: Besides the First Amendment, much of the protection for freedom of debate and inquiry at universities comes from Academic Freedom policies that the universities themselves adopt, and on which prospective students, faculty, donors, and legislative supporters rely. Miami of Ohio has such a policypresumably the Diversity, Equity, and Inclusion Task Force would be seeking to add viewpoint-based exceptions to it in order to implement the Task Force's goals. This is the current policy, which protects all ideas, whether or not people label them "racist, sexist, homophobic, etc.":

The teacher is entitled to full freedom in research and in the publication of the results, subject to the performance of his or her other academic duties; but research for pecuniary return should be based upon an understanding with the authorities of the institution.

The teacher is entitled to freedom in the classroom in discussing his or her subject, but should be careful not to introduce into his or her teaching controversial matter that has no relation to the subject. Limitations of academic freedom because of religious or other aims of the institution should be clearly stated in writing at the time of appointment.

College or university teachers are citizens, members of a learned profession, and officers of an educational institution. When they speak or write as a citizen, teachers should be free from institutional censorship or discipline, but their special position in the community imposes special obligations. As individuals of learning and as educational officers, they should remember that the public may judge the profession and the institution by their utterance. Hence, faculty members should at all times be accurate, should exercise appropriate restraint, should show respect for the opinions of others, and should make every effort to indicate that they are not speaking for the institution.

The University also recognizes that the faculty member is an integral part of the institution. While observing the stated regulations of the University, the faculty member maintains the right to criticize and seek revision of University policy, both administrative and academic.

Thanks to College Fix (Alexander Pease) for the pointer, and see also this post from the Foundation for Individual Rights in Education (Will Creeley).

Originally posted here:
Miami Univ. (Ohio) Task Force Calls for Suppressing Student, Faculty Speech, Without "Fear of First Amendment Violations" - Reason

Mailyn Fidler has joined the Reporters Committee as a legal fellow for the Technology and Press Freedom Project. Her work focuses on litigation, policy and research on technology issues affecting the news medias First Amendment rights.

Ive always been interested in the tools and systems that people use to govern themselves, Mailyn said. Law is one of those systems, as is technology.

The Technology and Press Freedom Project team, led by Gabe Rottman, publishes a weekly newsletter analyzing legal and policy issues at the intersection of technology and press freedom, including government surveillance and leak investigations.

Mailyns past work also concentrated on technology and press freedom issues. As an undergraduate, she studied science, technology and society at Stanford University before attending Oxford University on a Marshall Scholarship to study international relations. While attending Yale Law School, she interned at the Knight First Amendment Institute and worked with a law firm litigating First Amendment issues on behalf of major internet platforms.

In law school, Mailyn also worked with the San Francisco City Attorneys Office to develop impact litigation related to cybersecurity and First Amendment rights, an experience that she says helped prepare her for this fellowship.

I think theres a lot of room for growth at this intersection of technology and press freedom, Mailyn said. She added that her past work is relevant to how RCFP thinks, particularly as were thinking of new ways and new angles to attack these issues.

As she begins her position with the Reporters Committee, Mailyn looks forward to working to support journalists.

I have found that in almost everything Ive done in law, somehow I end up talking to journalists, she said. I think they are very important to the rule of law.

Mailyn Fidler is not admitted to practice law.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.

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RCFP's Technology and Press Freedom Project welcomes legal fellow - Reporters Committee for Freedom of the Press