Mediaboss Marketing

Freedom of and from religion are equally important in our culture and under our constitution to secure the blessings of liberty for all of our citizens.

Judge Amy Coney Barrett needs to be questioned extensively at her confirmation hearings about her legal views on the relationship of the Free Exercise and Establishment Clauses of the First Amendment. Will she continue the dangerous trend the Supreme Court has exhibited recently?

This past term, in Little Sisters of the Poor v. Pennsylvania, the court held that the Little Sisters could not be compelled to provide employees with insurance coverage for contraceptives, on the ground that doing so would infringe upon the Little Sisters right to practice its religious beliefs free from state interference.

Fulfilling a legal obligation to provide contraceptive insurance coverage is not practicing religion. It does not compel anyone to buy and use contraceptives. Nor does it imply approval of contraceptive use. Taking the coverage away from employees does do one thing for certain: It penalizes them financially if they decide to exercise their liberty interest and legal right to obtain and use contraceptives.

Also this past term, the court held in Our Lady of Guadalupe School v. Morrissey-Berry that the government may not interfere with religious schools decisions to hire or fire their lay teachers, that the schools decisions are outside of the protections afforded by fair employment laws, even though these laws are designed to protect the liberty interests of the public-at-large regardless of their religious beliefs.

Read more:
Another Voice: Coney Barrett should explain First Amendment views - Buffalo News

From yesterday's Pennsylvania appellate decision in In re Y.W.-B., by Judge Carolyn Nichols, joined by Judges Mary Murray and James Gardner Colins:

Mother and Father are the parents of Y.W.-B., born in June 2012, and N.W.-B., born in January 2015 (collectively, Children). On May 31, 2019, DHS filed the instant petitions to compel Mother's cooperation with a home visit.

In its petitions, DHS [Department of Human Services] alleged, in part, that on May 22, 2019, it received a report that three weeks earlier, the family slept outside a Philadelphia Housing Authority (PHA) office, and that on May 21, 2019, Mother was outside the PHA office from 12:00 p.m. to 8:00 p.m. with a child. The petitions further stated that Mother told a Project Home outreach worker that she was not homeless, but that her previous residence was burned down. According to the petition, it was "unknown if [Mother] was feeding [Children while] she stood outside of the PHA office for extended periods of time." According to the petitions to compel, DHS workers attempted to assess the family's home on the same day it received the GPS report, but Mother and Father refused them entry to the home or access to Children.

The appellate court held that "DHS presented the trial court with probable cause to search Mother's home in support of its petitions to compel cooperation," but vacated a trial court order that "Mother is NOT to record or video" the visit. The court quoted Fields v. City of Philadephia (3d Cir. 2017), which had said:

The First Amendment protects the public's right of access to information about their officials' public activities. It goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw. Access to information regarding public police activity is particularly important because it leads to citizen discourse on public issues, the highest rung of the hierarchy of the First Amendment values, and is entitled to special protection. That information is the wellspring of our debates; if the latter are to be uninhibited, robust, and wideopen, the more credible the information the more credible are the debates.

To record what there is the right for the eye to see or the ear to hear corroborates or lays aside subjective impressions for objective facts. Hence to record is to see and hear more accurately. Recordings also facilitate discussion because of the ease in which they can be widely distributed via different forms of media. Accordingly, recording police activity in public falls squarely within the First Amendment right of access to information. As no doubt the press has this right, so does the public.

The court went on to note, relying on Commonwealth v. Bradley (Pa. Super. Ct. May 5, 2020):

"The Third Circuit [in Fields], however, cautioned that all recording was not protected or desirable. 'The right to record police is not absolute. It is subject to reasonable time, place, and manner restrictions.' The court, however, did not address the constitutional limits of this important First Amendment right because the defendants offered no justification for the action. Accordingly, the court noted that no 'countervailing concerns' existed to justify a departure from the general right to free speech under the First Amendment."

In Bradley, this Court addressed such "countervailing concerns" in a case in which the defendant challenged his conviction for defiant trespass for recording in the lobby of a police station in which there was a "no-filming" policy in place. The Bradley Court specifically concluded that the no-filming condition in the lobby passed constitutional muster, reasoning:

"The Commonwealth presents several countervailing concerns to [the a]ppellant's argument that he had an absolute right under the First Amendment to videotape in the Lobby. Principally, the Commonwealth highlights Corporal McGee's testimony that the police department's no-filming condition in the Lobby was based on several reasons: (1) preventing the disclosure of confidential information relating to ongoing investigations discussed within secure areas of the police department; (2) safeguarding the identity of confidential informants and undercover officers; (3) ensuring their safety by preventing the risk of retaliation against them; and (4) ensuring and preserving the privacy of crime victims. Indeed, the trial court found 'Corporal [ ] McGee testified with regard to numerous grounds upon which the no[-]filming policy was based, citing confidentiality and victim safety as fundamental components.' Thus, the restriction or condition at issue is reasonable.

"The no-filming condition applies to all members of the public who visit the Lobby. In other words, members of the public are granted a license to enter and remain in the Lobby, provided that they abide by the condition. Among other things, the no-filming condition ensures the integrity of police investigations and activity. The condition applies only to the Lobby and the interior of the police station, and not to areas outside of the police station, such as steps or entrances. Admittedly, it prohibits only the recording, taping, and photographing within the Lobby. The condition does not bar the use of parchment and quill in the Lobby. It, therefore, is a reasonable restriction under the First Amendment because it is narrowly tailored to serve a significant governmental interest, i.e., to ensure the safety, security and privacy of officers, informants and victims. Moreover, it prevents interferences with police activity. Accordingly, under the circumstances of this case, the recording or filming in the Lobby by members of the public is not a protected activity under the First Amendment."

Fields recognized that "[a]ccess to information regarding public police activity is particularly important because it leads to citizen discourse on public issues, the highest rung of the hierarchy of the First Amendment values, and is entitled to special protection." Although this case involves DHS officials rather than police, and official actions within Mother's home rather than in public, we conclude that First Amendment protections extend to restrictions on "the stock of information from which members of the public may draw" when discussing public issues. Therefore, we conclude that Mother's claim that the trial court improperly curtailed her right to record the DHS officials conducting a home visit is subject to intermediate scrutiny.

In the instant case, there was no evidence of any countervailing interests to support DHS's request for a no-recording provision. See [Transcript] (indicating that the trial court denied DHS's request to recall Ms. Richardson and granted DHS's request for a no-recording provision based on DHS's counsel's assertion that there were "videos, photography taken, posted on social media that made her feel intimidated").

[W]e acknowledge the trial court's concerns regarding the privacy interests of Children. However, our review is necessarily limited to the issue raised in this appeal, specifically, the right to record, under the First Amendment, DHS employees conducting an assessment of a home, and not Mother's posting of such videos on social media. {We add that there were no indications that Mother took videos containing images of Children or DHS employees interacting with the Children during her previous interactions with DHS.}

Therefore, under the specific circumstances of this case, and in light of Mother's and DHS's arguments, we conclude that DHS failed to establish that its request for a no-recording provision was reasonable. We emphasize that our holding does not make the right to record absolute, consistent with established case law, it is subject to reasonable time, place, and manner restrictions.

See original here:
First Amendment Right to Record Child-Protection Visit to Your Home - Reason

Protestors gathered at 11th and Howard Streets on Aug. 29. Photo by Alex Preston.

The street lights lit the brick roads as protesters walked back to their cars. The demonstration in the Old Market had ended just before 11 p.m. and Bear Alexander Matthews walked back to his car on the warm Saturday night in mid September.

But when he got behind the wheel, Matthews noticed a police cruiser parked behind him. As he pulled away, the red and blue lights flashed. Officers cited him for driving with a suspended license and violating city noise ordinance for the use of his megaphone during the protest.

But the Sept. 12 incident didnt feel like a routine encounter with police.

It was deliberate, said Matthews, an organizer with ProBLAC, which has led demonstrations in Omaha. They were waiting there to catch me in the act of driving.

Soon a crowd gathered and 10 police cruisers arrived. A friend offered to drive Matthews home. After confirming the friend had a valid license, officers wrote him a citation as well for violating the citys noise ordinance and sent the two on their way.

Protestors in Omaha believe that police have shown a clear pattern of targeted intimidation and harassment during recent demonstrations, part of which has become the basis of a lawsuit filed against the city by the ACLU of Nebraska. During weekly protests in the Old Market, police stops, searches and citations have become regular occurrences. Protesters feel Omaha police are sending a clear message: dissent is not welcome.

Theyre trying to silence our First Amendment right, and theyre trying to silence any form of criticism, Matthews said.

For the past few months protesters have met at the corner of 11th and Howard streets in the Old Market, a location they call Liberation Square, to demonstrate. ProBLAC member Cole Christensen said its served not only as a way to spread their message, but also highlight police treatment of protesters.

Weve been using, to the best of our ability, demonstration sites that are in view of the public, Christensen said.

At a protest on Sept. 5, Christensen said he stepped inside Mr. Toads Pub to use their bathroom. As he exited, he was removed from the establishment by three officers.

They pulled me out by the straps of my backpack, Christensen said. They said I was Marked by upper command.

The Omaha Police Department declined to comment for this story as the allegations are part of an ongoing lawsuit with ACLU of Nebraska.

Christensen said police tried to search him, but they did not inform him of any crime that would warrant a search. He said fellow protestors helped to de-escalate the situation, and he was released without any legal ramifications.

Another protester, who wished to remain anonymous, said she was arrested at Billy Froggs following a protest at Liberation square on Sept. 4. The protester said nine officers arrested her saying she shined a laser pointer in an officers eyes. That amounted to third degree felony assault of an officer, giving police probable cause to search her.

At the bottom of my bag, they found a keychain laser cat toy, she said.

Protestors said theyve used laser pointers to identify possible agitators and people recording without their permission. The protester arrested Sept. 4 said she used her laser pointer to identify a possible plain-clothes officer, but she did not shine it near his face. When she learned police might arrest protestors with laser pointers, she put hers way and did not use it the rest of the night.

Following the search, she was taken to Douglas County Detention Center. The protester said she was not read her rights or told what she was being charged with. Once in jail, she was strip searched, before being told that her charges were reduced to misdemeanor assault in the third degree. She was released on bond, and is currently awaiting her court date.

The continued treatment of protests matches a pattern by the Omaha police of trying to silence free speech. The ACLU of Nebraska alleged that in a lawsuit filed in federal district court last Monday.

This is about accountability, said ACLU of Nebraska Executive Director Danielle Conrad. When the government infringes about individual civil rights and civil liberties, the courts must step in to check that power, to stop those abuses and to prevent future harm. We cannot accept that police will be allowed to police themselves.

The basis of the lawsuit started with a mass arrest in late July. For months, demonstrations throughout Omaha had created tension between community protestors and Omaha police, some ending in violence and the use of tear gas and pepper bullets.

On July 25, more than 100 protestors were trapped by police cruisers and arrested on the Farnam Street bridge over Highway 75. After waiting hours for processing at the Douglas County Detention Center, they were sent to overcrowded jail cells or solitary confinement, many for longer than 24 hours despite having bail ready.

Riley Wilson, a law student and legal observer arrested that night, said it seemed clear the motivation for the arrests was to deter protesters from demonstrating again.

Once inside, I heard a corrections officer agree with protesters about the inhumane treatment theyd received, Wilson said. Another corrections officer remarked, What percentage of them do you think are going to do this after tonight? I bet zero.

After mass arrests in June and July, OPD Chief Todd Schmaderer announced changes to department policy as well as new training. However, the harassment didnt stop, protesters said.

In the weeks following his run-in with police, Christensen said he saw Omaha police cruisers parked on his residential street in West Omaha. Two officers took pictures of his house, he said. When Christen started to record the officers with his phone, they started to look stiff and nervous. Through his open window, Christensen heard one of the officers make an off-hand remark about there not being a disturbance in the area after all. The officers left shortly thereafter.

[Omaha police] mark people that they think theyll have success targeting, he said. Its a way to invalidate the voices that are speaking truthfully about the oppression theyre witnessing.

Garrett Denton, a protestor who lives in Bellevue, said he was pulled over on Sept. 24, after driving past a memorial for Jake Gardner near F Street and 44th Avenue.

Denton said he rolled down his window and yelled Jake Gardner is a racist at the small group of people there on F street. Shortly afterward, an officer stopped Denton and asked him to step out of his vehicle. The officer cuffed Denton and said that he was impeding traffic and disturbing the peace. Denton said there were other counter protestors present, and he did not restrict traffic or change speeds while driving past the memorial.

Denton did not receive any citation or legal charges from this incident, but he feels that the stop was to discourage him from continuing to protest.

Theyre doing all they can to discourage us from being out there, Denton said. Its ridiculous the lengths theyll go to trying to prevent us from going to protest.

As one of the lead organizers for ProBLAC, Matthews said he has been stopped by police and cited for minor violations multiple times over the past month.

On Oct. 3, after a Liberation Square protest, Matthews says he drove by a line of six OPD squad cars sitting at 11th and Jackson Streets. After passing them, officers began following him.

Matthews was issued a citation for obstructing a passageway, as police say he blocked the flow of traffic by standing in the street during the protest that evening. Matthews said even while he was in the street, he allowed cars to safely move past him.

Since the mass arrest on July 25, Matthews has accumulated two citations for obstructing a passageway, two noise ordinance citations and a charge of resisting arrest. The inconvenience of fighting these charges will be a challenge for Matthews, but he says he welcomes it.

I take responsibility for everything that I do, Mathews said. And I take on the challenge of being that person that [police] look at to harass and try to break down. Im happy to take on that challenge against the enforcers of an oppressive system.

Christensen also said he and other protesters dont feel deterred from continuing to protest. He believes that people are waking up to see the oppression being perpetrated by Omaha police, and it has caused their number to grow.

The show of community has been really beautiful, Christensen said. There really is power in numbers.

Matthews said he is expecting more harassment from Omaha police, especially after the ACLU of Nebraska filed its lawsuit, which names Matthews and other ProBLAC members as plaintiffs. But it wont stop them from protesting, he said.

At the end of the day, we just want the police to be held accountable for their actions, and they do not want that, Matthews said. They dont want to look in the mirror, and we are forcing them to do that.

The rest is here:
Police Intimidation and Harassment Attempts to Silence First Amendment Rights, Protesters Say - Omaha Reader

The nomination of fellow Notre Dame Law alum Judge Amy Coney Barrett has generated considerable controversy. Some of that is related to the process. There are those who feel that the winner of November 3ds Presidential election should make the nomination. That appeared to be the unwritten rule in 2106 when President Obama nominated Judge Merrick Garland, only to see the Senate sit on their collective hands and not conduct a hearing, given the (sort of) pending 2016 election. Apparently, at some point between 2016 and 2020, there was an unwritten amendment to the unwritten rule, such that it is all of a sudden vitally important to confirm Judge Barrett ASAP.

And aside from the procedural controversy, progressives are concerned with Judge Barretts expressed views on abortion and gun control. Given that her appointment will leave the court in a 6-3 conservative versus progressive split, one can understand the concern coming from that side of the aisle.

But Ive been wondering about how Judge Barrett might view the First Amendment and other matters that might affect the journalists I work with. So I was pretty excited when I saw this headline: Would Justice Amy Coney Respect Press Freedom? I was hoping it would shed light on the subject. Unfortunately, it really didnt. The premise is essentially that President Trump appointed her, and President Trump hates the press, so look for anti-press rulings.

A more accurate assessment comes from The Institute for Free Speech. And their report is that she is really a blank slate. Shes been a Judge on the Seventh Circuit Court of Appeals since 2017, and in that time has apparently not written on the issue. It appears that she didnt weigh in as an academic either.

I do think there are some pressing issues in the First Amendment world, not the least of which is the future of New York Times v. Sullivan the 56 year old precedent that is the foundation for First Amendment jurisprudence in the world of journalism. Judge Barretts former boss, Justice Antonin Scalia was not a fan of the holding, nor is Justice Thomas.

So, it might be nice to ask Judge Barrett in her confirmation hearing just what she thinks about the holding in that case. Was it correctly decided? If not, why not? And what should the court have done?

If a future court were to overrule Sullivan, the fallout would be tremendous. We have a right to know where she stands on this.

See original here:
Judge amy coney barrett and the First Amendment - Lexology

Citing national security concerns, the government is attempting to infringe on Twitter's First Amendment right to inform the public about secret government surveillance orders. For more than six years, Twitter has been fighting in court to share information about law enforcement orders it received in 2014. Now, Twitter has brought that fight to the Ninth Circuit Court of Appeals. EFF, along with the ACLU, filed an amicus brief last week to underscore the First Amendment rights at stake.

In 2014, Twitter submitted a draft transparency report to the FBI to review. The FBI censored the report, banning Twitter from sharing the total number of foreign intelligence surveillance orders the government had served within a six-month period. In response, Twitter filed suit in order to assert its First Amendment right to share that information.

Over half a decade of litigation later, the trial court judge resolved the case in April by dismissing Twitters First Amendment claim. Among the several concerning aspects of the opinion, the judge spent devoted only a single paragraph to analyzing Twitters First Amendment right to inform the public about law enforcement orders for its users information.

That single paragraph was not only perfunctory, but incorrect. The lower court failed to recognize one of the most basic rules underpinning the right to free speech in this country: the government must meet an extraordinarily exacting burden in order to censor speech before that speech occurs, which the Supreme Court has called the most serious and least tolerable infringement on First Amendment rights.

As we explained in our amicus brief, to pass constitutional scrutiny, the government must prove that silencing speech before it occurs is necessary to avoid harm that is not only extremely serious but is also imminent and irreparable. But the lower court judge concluded that censoring Twitters speech was acceptable without finding that any resulting harm to national security would be either imminent or irreparable. Nor did the judge address whether the censorship was actually necessary, and whether less-restrictive alternatives could mitigate the potential for harm.

This cursory analysis was a far cry from the extraordinarily exacting scrutiny that the First Amendment requires. We hope that the hope that the Ninth Circuit will say the same.

Continue reading here:
EFF and ACLU Ask Ninth Circuit to Overturn Government's Censorship of Twitter's Transparency Report - EFF