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On March 19, the Ohio Department of Health ordered the closure of "hair salons, nail salons, barber shops, tattoo parlors, body piercing locations, and massage therapy locations" as part of the state's efforts to combat the spread of COVID-19. Nearly two months later, Gov. Mike DeWine announced that hair salons and barber shops would be allowed to reopen shortly, so long as they followed various social distancing and public health requirements.

There was no mention of letting tattoo artists get back to work. "We were closed with salons, barbers, tanning salons and the like," the Oxford, Ohio, tattooist Steve Cupp told WLWT5. "And we assumed once they opened, considering the proximity they have to their clients and the proximity that we have to ours, that we would be reopened with them. But we were excluded." The state eventually announced that tattoo shops would finally be allowed to reopen on May 15.

This sort of government action raises some interesting legal questions, especially for the numerous tattoo parlors that remain shuttered in other states. Do tattoo artists have a case to make against coronavirus closure orders? Does the Constitution protect a tattoo shop's right to remain openat least in some limited fashionduring the pandemic?

The idea is not so far-fetched. Both state and federal courts have recognized tattooing as a constitutionally protected form of free expression. Up until the year 2000, for example, it was a crime in Massachusetts, punishable by up to one year in prison, for any person except a doctor to mark "the body of any person by means of tattooing." But in Lanphear v. Commonwealth of Massachusetts, the Massachusetts Superior Court struck down that statewide ban on the grounds that "the act of tattooing is inseparable from the display of the tattoo itself and is expression protected by the First Amendment."

The U.S. Court of Appeals for the 9th Circuit reached the same conclusion in Anderson v. City of Hermosa Beach (2010). At issue was that city's ban on tattoo shops within city limits. "The tattoo itself, the process of tattooing, and the business of tattooing are forms of pure expression fully protected by the First Amendment," declared a unanimous 9th Circuit panel.

Which brings us back to the idea of a tattoo artist mounting a legal challenge to a coronavirus closure order. In United States v. Carolene Products Co. (1938), the U.S. Supreme Court said that when the courts review a regulation "affecting ordinary commercial transactionsthe existence of facts supporting the legislative judgment is to be presumed." In other words, judges were told to be extremely deferential towards the government when it is regulating economic activity.

But Carolene Products did not endorse judicial passivity on all fronts. "More exacting judicial scrutiny," the Court said, would still be appropriate in some cases. For example, judges should not defer to the government by rote in matters involving "a specific prohibition of the Constitution, such as those of the first ten amendments." Lawyers now call this exacting approach "strict scrutiny." In the words of Black's Law Dictionary, for a law or regulation to survive strict scrutiny review, it "should only be as restrictive as is necessary to accomplish a legitimate governmental purpose."

"The business of tattooing," as the 9th Circuit put it, is "fully protected by the First Amendment." Which means that any regulation of a tattoo shop should trigger strict scrutiny review when that regulation lands in court.

A public health order designed to curb the spread of an infectious disease like COVID-19 would seem to pass the "legitimate governmental purpose" prong of the strict scrutiny test. But what about the second prong, which requires the regulation to be the least restrictive means of pursuing that legitimate state end?

Here is where the tattoo shops may have a case. So long as they can operate safely during the coronavirus outbreakby requiring artists and clients to wear masks and gloves at all times, by routinely cleaning equipment and surfaces, by carefully practicing social distancing, by limiting the number of people allowed inside the shop, etc.a total shutdown of the business would not seem to qualify as the least restrictive means available for achieving a legitimate government purpose, even amid a pandemic.

Related: "Tattoos vs. the State: Free speech in skin and ink"

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Do Tattoo Shops Have a First Amendment Right To Remain Open During a Pandemic? - Reason

Union requires home healthcare providers to submit photo identification just to exercise constitutional right to stop union dues deductions

Chicago, IL (May 22, 2020) An Illinois home healthcare provider has filed a federal class-action civil rights lawsuit against the SEIU Healthcare Illinois and Indiana union (SEIU-HCII), for seizing dues from her compensation without her affirmative consent, and for enforcing arbitrary restrictions on her right to cut off dues deductions. The lawsuit, filed with free legal aid from National Right to Work Legal Defense Foundation staff attorneys, charges the union with breaching home healthcare providers First Amendment rights under the Foundation-won Harris v. Quinn and Janus v. AFSCME Supreme Court decisions.

In Harris, won by Foundation staff attorneys in 2014, the High Court recognized that the First Amendment is violated by schemes to forcibly extract dues from home healthcare providers who assist individuals whose care is subsidized by the government. In the 2018 Janus decision, the Supreme Court struck down mandatory union fees for public sector workers as an infringement of their First Amendment rights, and ruled that the government can only deduct union dues or fees with an individuals affirmative and knowing consent.

The plaintiff, Hydie Nance, provides home-based healthcare under the auspices of Illinois Home Services Plan. This program provides Medicaid funds to people with disabilities so they can hire and pay personal assistants to help them with their day-to-day activities. Nances complaint points out that the Illinois Department of Human Services (DHS) deducts union dues from these subsidies at the behest of SEIU-HCII union officials, and does so without notifying personal assistants that they have a First Amendment right not to financially support SEIU-HCII.

According to the complaint, Nance sent letters to both DHS and SEIU-HCII officials in November 2019 exercising her First Amendment right to end her union membership and cut off dues deductions. Both union and state officials ignored Nances attempt to exercise her rights and continued to deduct full union dues from her subsidies. The lawsuit also alleges that the dues deduction policy the state and SEIU-HCII enforce requires the DHS to not respond to notices it receives from personal assistants to stop dues deductions unless and until SEIU-HCII instructs DHS to cease the deductions.

Nance renewed her objection to union membership and dues deductions in March, the lawsuit says. While DHS again did not respond to the letter, SEIU-HCII officials sent an email acknowledging receipt of her request but claiming they unfortunately cannot process it without your valid photo id, instructing her to submit a picture of a photo ID in response to the message. SEIU-HCII bosses and DHS officials do not notify personal assistants that they must submit a photo identification unless union bosses reject a request to cut off dues, the lawsuit notes.

Nances complaint contends that this process impedes and burdens personal assistants First Amendment right to stop subsidizing SEIU-HCII and its speech and additionally impinges on personal assistants right to privacy and exposes them to the threat of identity theft. The lawsuit asks that the District Court declare unconstitutional SEIU-HCIIs continuing dues seizures after receiving written objections and that the court forbid enforcement of the policy. The complaint also requests that the union return to home healthcare providers all money it has seized illegally under the policy.

One of the attorneys representing Nance is William Messenger, a veteran National Right to Work Foundation staff attorney who argued and won the Janus and Harris cases at the Supreme Court. The lead plaintiff in the latter case, Pamela Harris, is also an Illinois home healthcare provider who filed suit with free legal aid from the Foundation after the SEIU sought to force her to pay union fees just for receiving state subsidies to care for her son in her own home.

Individuals cannot be forced to produce a photo ID just to exercise their legal rights, nor does the state of Illinois need the permission of SEIU bosses before respecting the First Amendment rights of healthcare workers, commented National Right to Work Foundation President Mark Mix. Years after the Supreme Court in Harris and later in Janus explicitly recognized the First Amendment right that home healthcare providers have to refuse to subsidize a union, SEIU union bosses and their allies in Illinois still are more interested in filling union coffers with forced dues than respecting the constitutional rights of those they claim to represent.

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 more than 250 cases nationwide per year.

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National Right to Work Foundation Illinois Home Healthcare Provider Hits SEIU Union with Lawsuit for Seizing Dues in Violation of First Amendment...

Trump was basically Obama's reply guy throughout the 2010s, so it's only fitting that he won't be able to take advantage of a new Twitter feature intended to curb his own comment trolls...legally, at least.

Twitter is testing an ability that lets users limit who can reply to their tweets. If you're part of the test, you'll be able to determine whether everyone can reply (the norm and current default), if only people that you follow can reply, or if only people you tag in a tweet can reply. If you don't tag anyone and go with that last option, you're basically turning off all replies, period.

Reactions to the new feature have been mixed. Some people are praising it as a way to stop potential harassers from replying. Others are joking about the feature's elitism. And of course, still more have turned the "no replies" tweet into a meme already.

One important take points out the constitutional and legal ramifications of the feature for public officials. The ACLU has issued a statement that public officials need to be careful about how they use the reply-limiting features, lest they violate the First Amendment.

As a general matter, Twitters investment in user controls is a good thing. But public officials would be violating the First Amendment if they were to use this tool to block speakers on any accounts theyve opened up for public conversation in their roles as government actors. Nor should public officials use this tool to decide who can, or can't, reply to accounts they have opened up for requests for government assistance, which may be on the rise due to COVID-19.

For the past several years, courts have been grappling with whether a public figure blocking someone on Twitter constitutes a violation of their first amendment rights. Most notably, the Court of Appeals upheld a ruling in a lawsuit brought against President Trump, saying that he was not allowed to block people after they had offended or disagreed with him, because it impinged on their freedom to engage in political speech.

The ACLU apparently sees the "no replies" feature as an extension of the idea of blocking because it limits speech in what has effectively become a digital public square. So, the new test features might be valuable, but people in the public eye are going to have to be careful about how they use them.

The rest is here:
ACLU warns that 'no replies' on Twitter could violate the constitution - Mashable

from the it's-the-constitution-people dept

Over the last year or so, theres been a surge of claims that Google, Twitter, YouTube, etc. are biased against conservatives.

The starting point of this bad faith argument is a presumption that sites should be neutral about their content moderation decisions decisions like which accounts Twitter suspends, how Google or Facebook rank content in search results or news feeds, or how YouTube promotes or obfuscates videos.

More about this neutrality nonsense in a later post, but lets move on with how this performative mewling works.

So after setting up the strawman standard of neutrality, these self-styled conservatives turn to anecdotes showing that their online postings were unpublished, de-monetized, shadow-banned, or otherwise not made available to the widest audience possible.

These anecdotes are, of course, offered as evidence that sites havent been neutral.

And its not just some unfocused wingnut whining. This attitude is also driving a number of legislative proposals to amend and scale back CDA 230 the law that makes the internet go.

Conservative Senators like Josh Hawley, Ted Cruz, and Lindsey Graham lawyers all, who surely know better bitch and moan about CDA 230s content moderation immunity. If only sites didnt have this freebie, they say well, then, wed see some neutrality and fair treatment, yessiree.

This is total bullshit.

Sure, CDA 230(c)(2) makes sites immune from being sued for their content moderation decisions. But thats only important to the extent it keeps people from treating community guidelines and acceptable use policies as matters of contract that can be sued over.

Moderation? Curation? Promotion? All of that stuff is fully protected by the First Amendment.

Really, I cant stress this enough:

CONTENT MODERATION DECISIONS ARE PROTECTED BY THE FIRST AMENDMENT.

Eliminating content moderation protections from CDA 230 doesnt change this fact.

It cant change this fact. Because CDA 230 is a statute and not the FIRST AMENDMENT.

So why all the arguing for CDA 230 to be carved back? Some of it is surely just bad-faith angst about big tech, misplaced in a way that would unduly harm small, innovative sites. But a lot of of it is just knee-jerk reaction from those who actually think that removing the immunity-for-moderation found in CDA 230(c)(2) will usher in a glorious new world where sites will have to publish everything.

Which, by the way, would be awful. Any site that just published virtually everything users posted (thats the true First Amendment standard) would be an unusable hellhole. No site is going to do that and, again . . .

They dont have to BECAUSE THE FIRST AMENDMENT PROTECTS CONTENT MODERATION DECISIONS.

Reposted from the Socially Awkward blog.

Filed Under: 1st amendment, cda 230, conservative censorship, conservatives, content moderation, free speech, neutrality, section 230Companies: facebook, google, twitter, youtube

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No, CDA 230 Isn't The Only Thing Keeping Conservatives Off YouTube - Techdirt

The Governor has limited outdoor gatherings to 25 people. Hundreds showed up to Ace Speedway.

GREENSBORO, N.C. Governor Cooper has ordered that crowds gathering outside should be no larger than 25 people.

But hundreds came out Saturday night for the season opener at Ace Speedway in Elon.

Speedway owner Jason Turner said he followed the CDC's guidelines at the race.

We checked, the federal government recommends no more than 250 people at community events.

The ticket office couldn't give an estimate on how many tickets were sold, but said it's likely a couple hundred.

At the entrance gate was a sign encouraging folks to avoid contact with one another along with other tips on how to avoid spreading germs.

There was sanitizer at the ticket booth, on tables and at concession stands.

Those sitting in the stands were packed in just as tight as the rows of cars in the parking lot.

The lines wrapped around the corner at the concession stands were no different.

Turner talked about where they stand on social distancing.

This is something we cannot enforce. If you look at the letter from Alamance county the Alamance County attorney said it's not enforceable it's a recommendation," Turner said. "It's something you choose to do. If you came to buy a ticket and wanted to see a show you're willing to sit next to your peers."

A letter sent out by Alamance County said the speedway has been in contact with the health department, and that the governor cannot constitutionally limit the number of people who can peaceably assemble under the First Amendment.

Because of that, the sheriff also said he would not put the breaks on crowds coming out for the race.

Turner said there was roster out front for folks to put their information down for contact tracing, if it is needed.

Turner said he knows the coronavirus is real, and they've taken precautions with washing station, and signs as reminders to stay safe.

He said the biggest thing folks should do is use their best judgment.

The rest is here:
Ace Speedway packed with fans on opening night - WFMYNews2.com