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Note from Scott Hollifield: Please enjoy this previously published column from 2004 while I am away from the office.

While the First Amendment to the U.S. Constitution guarantees us all the opportunity to speak in tongues at the Rocky Creek Church of the New Revival and Second Coming if we so choose, it does not give any of us the right to own a goat named Sparky.

Im sorry, thats just the way it is.

A survey by the McCormick Tribune Freedom Museum found that people are all mixed up about the First Amendment, which gives us freedom of speech, freedom of religion, freedom of the press, the right to assemble and the right to petition for redress of grievances.

A telephone survey of 1,000 people found that more respondents knew Bart as a character on The Simpsons (61%), Simon as a judge on American Idol (49%) and Federal Express as the one to call when it absolutely, positively has to be there overnight (61%) than were aware that freedom of the press is included in the First Amendment (11%).

And many believe the First Amendment is much more expansive than it really is. Twenty-one percent said it guarantees each of us the right to own and raise pets (like a goat named Sparky), while 17% said the First Amendment affords us the right to drive a car.

We all need a civics lesson, but not one of those boring civics lessons where we lose interest and stare out the window at the girls track team and flunk the final and fail to get into a really good college and end up working at a newspaper and writing about goats, but an exciting civics lesson that applies the First Amendment to a real-life situation we can all understand.

Here we go. Lets say your pet goat Sparky sneaks next door and tears the trailer hitch off your cousin Eugenes Pontiac. Theres already bad blood between the two of you due to a property line dispute and Eugene, being the hothead that he is, says, Ill tell you what Im going to run for mayor and when I win Im going to pass me an ordinance outlawing goats.

Ill tell everybody I know not to vote for a goat-hating hothead! you exclaim. (Freedom of speech)

Frankly, though, youre not worried about Eugene becoming mayor since hes about as popular around town as a Danish cartoonist at an Islamic picnic. (Freedom of religion)

Then, Eugenes opponent is spotted in the background of a Kid Rock sex tape and withdraws from the race, his political career and marriage both in shambles.

GOAT-HATING HOTHEAD WINS MAYORS RACE reads the newspaper headline. (Freedom of the press)

Fearing the town will soon fall into anarchy due to Eugenes utter lack of leadership skills and functional illiteracy, you quickly tack these notices to telephone poles across the community: If you would like to help me get Eugene thrown out of office, meet me at the fellowship hall of the Rocky Creek Church of the New Revival and Second Coming on Tuesday at 8 p.m. (Freedom of speech, freedom of assembly, freedom of religion)

That night, you address the crowd.

If yall thats handling the snakes back there will give me your attention for a minute. Now, we all know a goat-hating hothead like Eugene shouldnt be the mayor. Lets circulate this petition that calls for his immediate removal from office due to his ineptness and goat bias. (Freedom of speech, freedom to petition for redress of grievances)

PETITION SUCCESSFUL GOAT-HATING HOTHEAD OUSTED, reads the newspaper headline. (Freedom of press)

So, heres what weve learned today: The First Amendment is good. It has nothing to do with owning and raising pets. And no one should ever elect a goat-hating hothead mayor.

Read more:
Hollifield: Another look at the First Amendment - Bristol Herald Courier

Protests of racial injustice and police brutality continued this weekend in Charlotte. As usual, Charlotte Mecklenburg police were on the scene, but they were operating under a temporary restraining order. A superior court judge on Friday signed the order halting the department's use of riot control agents like tear gas and flash bang grenades against peaceful protesters. That was a response to a lawsuit filed by groups including the local chapter of the NAACP, the ACLU of North Carolina and Charlotte Uprising. Alex Heroy helped to argue their case in court. He joins Morning Edition host Lisa Worf.

Worf: Good morning, Mr. Heroy.

Heroy: Good morning.

Worf: So how much does this restraining order change CMPD tactics? After all, CMPD says it has only used riot control agents like tear gas once people began throwing rocks and frozen water bottles at officers.

Heroy: I think it requires stricter adherence to their policy and puts limits on the policies. There's CMPD directives are, they're not always to set specific on the use of force continuum and sort of what's allowed and what's not allowed. So this is put in place. We filed a lawsuit to really protect the peaceful protesters that have been victims of, what we thought of as sort of a gross assault on their First Amendment rights, at least in particular on June 2.

Worf: So when you say it puts limits on some of their tactics, are you saying because it adds a certain level of scrutiny that wasn't there before, even though CMPD says this doesn't change that much?

Heroy: Yes. Yes. I mean, so on June 2, when you had three to four hundred protesters who are all largely acting very peaceful, marching with their hands up. No real issues that we've seen in the videos. And then the police boxed them in and gassed them and shot at them. That's not OK. That's across the line. That's way over the line. Even if CMPD says that there were some outliers throwing a water bottle or even a rock would justify that kind of use of force. And it doesn't justify that use of force indiscriminately against a large crowd of peaceful protesters exercising their First Amendment rights. That's just not allowed. It's not OK. And we had to put a stop to it and not let it, risk it happening again. That's what we had to move for this emergency restraining order to make sure it doesn't happen again.

Worf: No CMPD Deputy Chief Jeff Estes said Friday that the one difference it makes for the department is that it prohibits officers from using riot control agents like tear gas again against people who are destroying property. So officers would have to intervene physically to remove those people. Do you have concerns this could further escalate a situation?

Heroy: Well, I don't think this CMPD's communication was an accurate summary of the order. The restraining order restricts actions against peaceful protesters. If there is an individual who is causing a destruction during a peaceful protest, CMPD is supposed to go in and remove that that individual, if they're destroying property there's a use of force continuum that CMPD is allowed to use. It is not a, this is not a, an order that allows or forces CMPD to just simply let people go commit criminal activity. That is not it at all. It is a restriction on what use of force can be used against peaceful protesters gathering.

Worf: Now, this is a temporary restraining order until the lawsuit can be heard. What does the lawsuit itself seek?

Heroy: So the lawsuit itself seeks a permanent restraining order that the same thing. We're also asking for what's called a declaratory judgment against which would find that the dispersal order allegedly announced on June 2 was ineffective and did not comply with CMPD policy.

Worf: And beyond the use of tear gas and other riot control agents, how did the groups you represent want to change police tactics when it comes to handling protests?

Heroy: I say that, you know, there's a lot of groups that are plaintiffs in the lawsuitm it's a lot of different opinions. So I don't want to speak for the entire group because it's a range with a lot of things that need to be changed with police. But I think the overarching issue is the respect and lack of respect and improving that, greatly improving that and community relations with the police.

Worf: That's Alex Heroy, who helped argue the case in court on behalf of groups, including the local chapter of the NAACP, the ACLU of North Carolina and Charlotte Uprising.

Read more here:
Lawyer On How Restraining Order On CMPD Will Protect Protesters' First Amendments Rights - WFAE

Well folks another opinion day has come and gone at the US Supreme Court with no ruling yet on the bigBarr v. AAPCchallenge to the TCPA.

Traditionally the Supreme Court clears its April docket with rulings by the end of June. With a set Monday calendar to release opinions and a likely additional release date this Thursday, that leaves only TWO days left (the 25th and the 29th) for the Supremes to enter their final vote on the fate of the TCPA. If the traditional calendar sticks that is

Truth is, with two (traditional) opinion dates left the Supreme Court is still sitting on fourteen (14!) unissued rulings so this may end up slipping into July (although I certainly hope not since I have a big webinar to discuss the ruling set up next Tuesday, June 30, 2020. Ha!) Notably, the Supremes seem to be issuing opinions in rough order of argument, which means there are still six cases ahead of AAPC on the docket. Obviously, however, the Supreme Court canand willissue opinions in any order as they are finalized so this isnt a first come first served (TCPA) world.

But since we are all waiting with baited breath, lets go through a few possible outcomes here. As a refresher, the Supreme Court is reviewing the TCPA inAAPCon a challenge by a political consulting organization arguing that the TCPAs government-backed debt exemption is unconstitutional. There are a number of permutations to the challengeas was made clear at oral argumentand it is not entirely clear whether the Supremes will scrutinize only the exemption or the restriction itself.

Since TCPAWorlddwellers are becoming constitutional law scholars, lets also recall a couple basics of First Amendment jurisprudence:

While there is no doubt that a content specific statute must meet strict scrutinya very high test it is unclear whether that scrutiny is properly applied to the exemption in this case or to the restriction itself. The briefing of the parties below focused solely on the exemption but in the briefing on appeal to SCOTUS and in oral argument there has been noticeable creep toward arguments (for and against) applying scrutiny to the TCPAs restrictionsashift that may or may not be entirely attributable to my loud-mouthery.

So with all of this recalled, here are the possible outcomes in no particular order:

Why this might happen:AsProfessor Epps explained inUnprecedented14the doctrine of content neutrality has expanded greatly over the past few decades, arguably spiking to exhaustion inReed.It is possible that the Supreme Court usesAAPCas a vehicle to roll back (perhaps significantly) on the application of strict scrutiny in First Amendment challenges and re-focuses its application solely to instances of viewpoint specificity. (Translation: the Supreme Court might use the TCPA as an opportunity to give Congress more power to regulate speech in a neutral manner.)

Why it shouldnt/wonthappen:I mean, the TCPA is content-specific under existing case law so the Supreme Court would really have to depart fromReedin a clear and decisive way to get here. And judging by thequestions of the Justices at oral argument, this just isnt going to happen.

Why this might happen:This would be a pretty weird outcome because it would require the Supreme Court to find collecting government-backed debt is a compelling governmental interest, which is tacky to say the least. Still some district courts have reached this conclusion so it is not impossible.

Why it shouldnt/wonthappen:The Government did not even advance this argument and none of the Justices seemed slightly interested in it at oral argument. This seems like the most unlikely outcome.

Why this might happen:Really this is what should happen. The focus here would be on the restrictioni.e. the TCPAs ban on the use of ATDS/pre-recorded voice messages to call cell phonesand not the exemptioni.e. the ability of government-debt collectors to make calls. This makes more analytic sense since the First Amendment prohibits restrictions on speech not permissions (is that a word?) on speech. Plus the TCPA really should survive even strict scrutiny if the TCPAs ATDS restriction is read narrowly. So this approach allows for First Amendment doctrine to be logically applied AND for the TCPA to be upheld. I mean, feels like a win/win (since presumptively the Supreme Court does not want to strike down the popular statute.)

Why this shouldnt/wont happen:No one else thought of it but me? This actually seems to be the right answer here, but it simply wasnt briefed or argued and none of the Justices asked any questions about it from the bench. Right or wrong, the focus inAAPCseems to be primarily on applying scrutiny to the exemption and not the restriction and the assumption seems to befor whatever reasonthat the level of scrutiny to be applied to the restriction would be lower intermediate scrutiny because the content-specificity arises in the exemption and not the restriction itself. (Translation: everyone is elevating form over substance for some reason and it doesnt seem like thats going to change now.)

Why this might happen:Well, this is what the two courts of appeals below did so why wouldnt the Supreme court just do the same thing? This seems to be the odds on favorite for most observers but I think it is relatively unlikely (as I explain below). But the ruling here would come down to Congressional intent the TCPA includes a severance provision suggesting that Congress intended the exemption to be cast aside if it was unconstitutional. So the Court should do what Congress intended, right? But really this is theeasiestway for the Supreme Court to uphold the popular TCPA it is effectively a punt.

Why this shouldnt/wont happen:There are a bunch of problems with it. First, it applies scrutiny to the exemption rather than the restriction which is just flat the wrong analysis in a First Amendment case as opposed for instanceto an Equal Protection challenge. Second, it would result in the Supreme Court expanding a restriction to cover more speech, in a manner that it has never done before. Third, it would impact the substantive speech rights of non-parties to the case without notice or an opportunity to be heard. Fourth, it would afford a remedy to the Plaintiff that it did not seek and lacked standing to seek. Fifth, it would deny any remedy to a successful Plaintiff challenging a statute on First Amendment grounds. Sixth, there is nothing wrong with the exemption standing aloneagainst the First Amendment does not ban permissions on speech it bans restrictions so striking it makes no logical sense. Setting all of that aside, it just doesnt make sense that the Supremes would grant cert. on this issue when there was no split of authority below. There was areasoncert. was granted here and it wasnt just to rubber stamp what the appellate courts did.

Why this might happen:If the Supreme Court applies scrutiny to the exemption this is the result that makes the most doctrinal sense. The restriction is being applied unevenly by virtue of the exemption. Striking the exemption works violence to logic and law (see above) so there is really no other coursethe restriction must fall.

Why this shouldnt/wont happen:The TCPA is a popular statute and the Supreme Court doesnt want to allow a bunch of robocalls. There really is no doctrinal hold up here it is the right thing to do, assuming scrutiny is applied to the exemption that is.

Why this might happen:This is likely for the same reasons as 5. given thatno onehas raised the fact that certain provisions in the TCPA are not effected by the government-backed debt exemption and the issues of content-specificity it creates. Plus the entire dang statute is riddled with content specificity issues the FCC has created a number of content-specific exemptions and provisions like the DNC restrictions on marketingplainlylimit speech based on the content of the message.

Why this shouldnt/wont happen:Here is where the doctrine of severance properly comes into play. Plaintiffs below did not challenge any other content-specific provision of the TCPA other than the government-backed debt exemption. So only those restrictions of the TCPA impacted by that exemption should be struck down and severed from the statute. If folks have problems with he rest of the statute theyll just have to bring their own Supreme Court appeal. Still though, it is a little odd that this was never briefed or argued leading to a surprisingly high (15%) chance that the entire statute is gone.

Why this might happen:None of the other results are all that satisfying. Perhaps we see a carve out for political speech. Perhaps we see a remand for further fact-finding on the impact of robocalls. Perhaps there is further information needed on government-backed debt. Perhaps Justice Breyers approach of all law is speech and whats the First Amendment anyway? (not a real quote) is accepted and the TCPA brings down the freedom of speech entirely. Who knows.

Why this wont happen:Not sure why it would. The Supreme Court generally doesnt go off the rails where it doesnt have to and there was very little discussion of middle ground approaches at oral argument. Not much reason to suspect a screwball here, but you never know.

So adding it all up:

Oh and in case you missed our great coverageor just want to re-live anything our LIVE feeds of the oral argument arehereandhere. Our definitive analysis of the oralargument is here.

Stay tuned.

Read more:
What the US Supreme Court Might Do With the TCPA - The National Law Review

Please enjoy this previously published column from 2004 while I am away from the office.

While the First Amendment to the U.S. Constitution guarantees us all the opportunity to speak in tongues at the Rocky Creek Church of the New Revival and Second Coming if we so choose, it does not give any of us the right to own a goat named Sparky.

Im sorry, thats just the way it is.

A survey by the McCormick Tribune Freedom Museum found that people are all mixed up about the First Amendment, which gives us freedom of speech, freedom of religion, freedom of the press, the right to assemble and the right to petition for redress of grievances.

A telephone survey of 1,000 people found that more respondents knew Bart as a character on The Simpsons (61 percent), Simon as a judge on American Idol (49 percent) and Federal Express as the one to call when it absolutely, positively has to be there overnight (61 percent) than were aware that freedom of the press is included in the First Amendment (11 percent).

And many believe the First Amendment is much more expansive than it really is. Twenty-one percent said it guarantees each of us the right to own and raise pets (like a goat named Sparky), while 17 percent said the First Amendment affords us the right to drive a car.

We all need a civics lesson, but not one of those boring civics lessons where we lose interest and stare out the window at the girls track team and flunk the final and fail to get into a really good college and end up working at a newspaper and writing about goats, but an exciting civics lesson that applies the First Amendment to a real-life situation we can all understand.

Here we go. Lets say your pet goat Sparky sneaks next door and tears the trailer hitch off your cousin Eugenes Pontiac. Theres already bad blood between the two of you due to a property line dispute and Eugene, being the hothead that he is, says, Ill tell you whatIm going to run for mayor and when I win Im going to pass me an ordinance outlawing goats.

Ill tell everybody I know not to vote for a goat-hating hothead! you exclaim. (Freedom of speech)

Frankly, though, youre not worried about Eugene becoming mayor since hes about as popular around town as a Danish cartoonist at an Islamic picnic. (Freedom of religion)

Then, Eugenes opponent is spotted in the background of a Kid Rock sex tape and withdraws from the race, his political career and marriage both in shambles.

GOAT-HATING HOTHEAD WINS MAYORS RACE reads the newspaper headline. (Freedom of the press)

Fearing the town will soon fall into anarchy due to Eugenes utter lack of leadership skills and functional illiteracy, you quickly tack these notices to telephone poles across the community: If you would like to help me get Eugene thrown out of office, meet me at the fellowship hall of the Rocky Creek Church of the New Revival and Second Coming on Tuesday at 8 p.m. (Freedom of speech, freedom of assembly, freedom of religion)

That night, you address the crowd.

If yall thats handling the snakes back there will give me your attention for a minute. Now, we all know a goat-hating hothead like Eugene shouldnt be the mayor. Lets circulate this petition that calls for his immediate removal from office due to his ineptness and goat bias. (Freedom of speech, freedom to petition for redress of grievances)

PETITION SUCCESSFULGOAT-HATING HOTHEAD OUSTED, reads the newspaper headline. (Freedom of press)

So, heres what weve learned today: The First Amendment is good. It has nothing to do with owning and raising pets. And no one should ever elect a goat-hating hothead mayor.

Scott Hollifield is editor and general manager of The McDowell News in Marion, N.C.

See the original post here:
HOLLIFIELD: Another look at the First Amendment | Entertainment - starexponent.com

News File PhotoThe Alpena County Courthouse is seen.

ALPENA A 26th Circuit Court judge will weigh whether death threats should keep a man in jail if theyre considered free speech.

A judge set a $150,000 bond when David Frey said was arrested on a terrorism charge for allegedly threatening to kill someone, among other charges. But the terrorism charge, the most serious of the charges Frey faced, was dismissed by District Court Judge Thomas LaCross, so the bond should be lowered, Frey argued in Circuit Court.

If the alleged threats arent part of the current charges, they are protected speech under the First Amendment, defense attorney Alan Curtis argued.

Its not a crime to say, In the future, I might kill you,' Curtis said.

The bond is too high for the remaining charges, Frey said, and should be lowered to an amount he can pay so he can leave jail while his case proceeds in court.

Frey is accused of breaking car windows and kicking in a door at the home of a man Frey said he thought might be hurting Freys son.

The terrorism charges connected to verbal death threats made against the man and his family could have led to a 20-year prison sentence.

With that alleged offense no longer in play, Frey should be able to pay less to be released from jail, Curtis, a court-appointed attorney, said.

Alpena County Prosecutor Cynthia Muszynski argued the bond amount is reasonable, despite the lesser seriousness of the remaining charges, because Frey continued making threats via the phone in the county jail after he was arrested.

Curtis also made the First Amendment argument before LaCross in District Court, when the terrorism charge was dropped, but LaCross ruled the bond amount should not change.

Circuit Judge Ed Black, who has not seen a transcript of the court hearing in which LaCross decided to drop the terrorism charge, told the parties that, while retaining the $150,000 bond amount does not sound like something I would have done, he doesnt have all the facts LaCross used in his decision.

Frey will appear in court again in July, after Black has been supplied with the same information originally available to LaCross, to argue for a lower bond.

At that time, the court will also address a motion that Black recuse himself from hearing Freys case because Black handled other cases related to Frey while Black was Alpena County prosecutor.

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Death threats protected by First Amendment, attorney says - Alpena News