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HAMPTON It's perfectly legal to erect a giant "F--- OFF" banner on the front of your house and currently there is nothing the town government can legally do about it.

"I think it's ridiculous," said Selectman James Waddell, who found out the town's hands were tied in regulating offensive language on signs after receiving complaints about one on Mill Road.

"When I was a kid and you (used that language) someone would smack you. It wouldn't be out there long. But times have changed."

The town's Planning Board is putting forth a zoning amendment to voters March 8 to strike what has been deemed non-enforceable language in the town's sign ordinance prohibiting profanity and explicit content.

However, they are seeking to add wording that limits the owners of residential properties especially the few who display offensive content from displaying banners to two occasions per year, and for no more than 14 consecutivedays per occasion.

A banner, according to the town's zoning ordinance, is defined as a sign of lightweight fabric or similar material that is mounted to a pole or a building. National flags, state or municipal flags, according to the ordinance, are not considered banners.

Planning Board Chairman Tracy Emerick said the impetus behind the amendment was a "F--- OFF" banner put up on a home on Mill Road in 2020 in protest of a new development in the neighborhood. The sign was placed under another banner that read, "Thank God for the First Amendment.

Previous story: Hampton mans F--- OFF yard sign riles neighbors

"There was a lot of heat taken at the town hall about this particular banner," Emerick said.

Selectmen received a number of complaints from neighbors upset children had to walk by it, as well as from motorists who traveleddown the road and saw it.

And they were upset the town leaders were not doing anything about it.

While the town's current sign ordinance prohibits words or pictures that are "obscene, pornographic or immoral character," Emerick said it's considered unenforceable.

"The truth of the matter is that it's a First Amendment right," he said. "The right to free speech is the right to free speech."

Emerick said Town PlannerJasonBachand requested the board remove the language regarding content from the sign ordinance on the advice of the town counsel.

He cited two U.S. Supreme court actions: Reed v. Town of Gilbert (2015), which involved a municipality restricting content-based messaging in signage, and Iancu v. Brunetti (2019), which involved prohibiting the use of a trademark for FUCT clothing line"that was considered immoral and obscene.

Both were deemed unconstitutional in violation of the First Amendment by the court.

Bachand told the Planning Board at a recent meeting the wording could leave the town open to lawsuits, including from a resident challenging why they are not enforcing it.

"We can't do anything on what people put on a banner," Emerick said. "All we can do is try and control the use of banners."

Initially, the first draft of the zoning amendment banned all banners in residential zones.

Emerick said the problem was what if someone wanted to put up a "Welcome Home" sign for a soldier returning from overseas or a "Congratulations" one for a birthday or graduation.

"That's where the two and for only 14 days come from," Emerick said. "We didn't want to restrict positive banners and most positive banners have an event and a timeframe."

Emerick said enforcement, if the amendment is approved, would be done by the town's building department.

The "F--- Off" banner on Mill Road that spurred the zoning amendment is no longer on display.

While selectmen sent a letter to the homeowner requestinghe take down the sign, Waddell said he doesn't believe that did the trick as it was up for months after the request was made.

"I'm not sure why the sign went down," he said. "I don't know if he felt his purpose was served or not."

The sign regarding the First Amendment remains proudly displayed on the home as well as a new small banner of a gnome giving what appears to be the middle finger.

Waddell said he supports the proposed zoning amendment because it gives the town an enforcement tool if future cases arise.

"It's a way to control signs because signs can get totally out of control," he said.

The zoning amendment only pertains to banners and not other signs defined in the ordinance like political signs.

Waddell said he was recently asked what the board could do about people holding up offensive political signs in downtown Hampton.Signs that have led to complaints include "Let's go Brandon" signs (an anti-President Joe Biden slogan) as well as a flag that directly states "(Expletive) Biden," with the swear word made out of guns.

Waddell said again, it's protected by free speech. According to the ACLU, "generally, all types of expression are constitutionally protected in traditional public forums such as streets, sidewalks and parks" and a permit is not required to picket or hold up signs.

Waddell said he's had people ask him if selectmen could restrict the hourspeople can hold signs downtown, "or type of signs they can hold."

"It's a slippery slope," Waddell said. "It's a shame that we even have to think about that."

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Perfectly legal: 'F--- OFF' sign in Hampton irks neighbors, could lead to zoning change - Seacoastonline.com

Marilou Rickert did not set Washington politics on fire when she ran for the Legislature in 2003.

Rickert, an attorney and Green Party candidate who tried to unseat long-term incumbent Tim Sheldon in the West Sides 35th district, lost by a huge margin, with Sheldon gathering about 80% of the vote.

Rickert nevertheless holds an important legacy in Washington politics as a free-speech figure. It was Rickert who was charged with violating state law for telling a falsehood about Sheldon in her campaign she incorrectly characterized a vote he took on a flyer and it was her case that the state Supreme Court used to throw out that law.

A political candidate making knowingly false and reckless statements, the court ruled, is constitutionally protected speech.

The notion that the government, rather than the people, may be the final arbiter of truth in political debate is fundamentally at odds with the First Amendment, the courts 5-4 majority opinion read.

Now the governor is looking to take on the tsunami of election lies that is animating a large part of the conversation on the political right and taking a run directly at the boundaries established in Rickert v. Washington.

Gov. Jay Inslee is supporting legislation that would make it a crime to tell lies about election results. The legislation is still being drafted, but his notion is to make it a gross misdemeanor, punishable by up to a year in jail and $5,000 in fines, for candidates to tell lies about elections with the knowledge that such lies can incite violence.

It should not be legal in the state of Washington for elected officials or candidates for office to willfully lie about these election results, Inslee said

In laying out his reasoning, Inslee is right about a whole lot. He is 100% correct that too many elected officials have been lying about elections just pulling blatantly idiotic nonsense out of thin air. Hes correct that these lies have fueled dangerous, destructive violence, and hes accurate in identifying the rotting head of that stinky fish as the former president, who seems unable to speak without lying.

Hes right that the election lies are a threat to our democracy, and that the lying is not limited to national elections. If you think the Trump won lies are a steaming pile of horse flop, try Culp won. This is an actual thing, too dumb to be believed, and yet it is being advanced by some Republicans right now, including Joe Kent, a Trumpworld favorite trying to unseat Rep. Jaime Herrera Beutler. Kent calls Loren Culp the real governor of Washington.

All of these lies, and the large numbers of people who swallow them, are a huge problem for our country. But this proposal is no answer. For constitutional, legal, practical and political reasons, its a bad idea.

Free speech is such a fundamental right that there is a significant degree of protection for some false speech as in the Rickerts case as well as important barriers to the state acting as the arbiter for what speech is accurate or acceptable.

Its not as if lying is completely protected. Perjury, fraud and libel are instances in which false speech is not protected by the First Amendment. But the Supreme Court has often elevated freedom over accuracy or honesty, especially in political speech. It has struck down laws attempting to prohibit people from lying about their military service (the so-called Stolen Valor Act) and protected the press from libel claims when it publishes incorrect information about public figures, unless such publication is done with actual malice (the landmark Times v. Sullivan case).

Thats to name just two cases. The constitution and a long history of case law establishes the freedom to say certain false things as an important indicator of true freedom. It is no kind of freedom at all, in other words, to say only that which is governmentally vetted.

At a time of rampant, destructive dishonesty in politics, its not hard to see the appeal of Inslees proposal. Journalists and online platforms have been challenged with an ever-greater need to act as editors and gatekeepers against the dissemination of lies; this is not, as people often claim, a violation of the First Amendment. Journalists and online platforms, as opposed to the government, have a responsibility to edit, vet, fact-check, challenge and be discerning about who they amplify.

That is the marketplace of ideas, and it is theoretically the way that bad speech is combatted. Ideally, the existence of ample, robust volumes of accurate, factual information will overwhelm false ones. Im not sure this is true anymore, if it ever was. The edifice of media organizations and online platforms that sustain lies has grown so large that people can simply climb inside it and never learn an accurate fact.

Still, that doesnt mean its time to begin empowering government to prosecute political speech. There are legal obstacles, including the difficulty of proving a statement is a lie rather than simply incorrect, as well as the challenge of establishing, beyond reasonable doubt, an intention to incite violence.

And there is an absolute certainty of a spectacular backfire. Think of the Culp won crowd. Imagine their delight at being prosecuted for telling this lie one based on the premise that the government is conspiring to hide the truth from people. Imagine their delight at being handed this badge of honor, and how good it will be for their ability to raise money from the millionaires who support the election lies.

Inslees right about the sickness, wrong about the cure. The Rickert case differs from Inslees proposal in key respects. As the governor noted, Rickert dealt with falsehoods told by one candidate against another; his proposal would go after lies about the electoral system generally, and those intended to incite violence.

Its hard to imagine, though, that the state Supreme Court would not come to the same conclusion with this proposal as it did in Rickert: government censorship is not a constitutionally permitted remedy.

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Shawn Vestal: Inslee's right about the disease, but wrong about the cure - The Spokesman Review

Hours into a marathon oral argument on Jan. 10, Judge Amit Mehta of the U.S. District Court for the District of Columbia observed that if there is one thing this hearing has shown it's that this is not an easy case. For nearly five hours Judge Mehta heard arguments about whether former President Donald Trump, Rep. Mo Brooks, Rudy Giuliani and others could be held civilly liable for their role in the Jan. 6 Capitol insurrection. The main lawsuits, brought by Reps. Bennie Thompson and Eric Swalwell, allege violations of 42 U.S.C. 1985(1), a Reconstruction-era statute that created civil liability for conspiracies to prevent public officials from holding any office or discharging any duties.

Addressing issues common to the three lawsuits, Judge Mehta wrestled with formidable defenses raised by Trump and his co-defendants: chiefly that Trump and Books are immune from civil liability for actions taken as part of their official duties, and that the defendants statements leading up to the siege of the Capitol could not satisfy the elements of conspiracy, especially to the extent that the statements were protected speech under the First Amendment.

Immunity

Trump lawyer Jesse Binnall argued for an expansive, highly formalistic vision of presidential immunity, relying on the Supreme Courts ruling in Nixon v. Fitzgerald that presidents are entitled to absolute immunity from civil liability for actions while in office that fall within the outer perimeter of their official responsibility. The crux of Binnalls argument was that the court must entirely ignore the content of Trumps speech on Jan. 6his remarks at the Ellipse and on Twitter over the course of the dayand look only at the presidents conduct to analyze whether he was acting in his official capacity. Because Trump was addressing the American people, Binnall argued, he was acting within his official duties as president and must enjoy immunity, especially since the subject of his speech, electoral integrity, is a matter of immense public concern.

Judge Mehta was skeptical of this all-encompassing vision of the presidents official duties, which potentially would make the president immune from civil liability anytime he opens his mouth. Judge Mehta pushed Binnall on whether there is anything that a president could do or say while in officefor example, as part of a campaignthat would not be immune from liability under his expansive theory of presidential immunity. Binnall said that he could not name an example of anything the president could say that would not fall within his official duties under this theory, but that perhaps signing a lease on a campaign office would not fall within his responsibilities as president.

But if Binnall failed to give Judge Mehta a reasonable standard for the scope of presidential immunity, the plaintiffs struggled to offer one that would withhold immunity in this case while nevertheless being consistent with precedent. The plaintiffs argued that Trump should not enjoy immunity because fomenting an insurrection against Congress was clearly unconstitutional and thus outside his official duties. But as Judge Mehta noted, Fitzgerald held that presidential immunity did not depend on the legality of the presidents action. The plaintiffs were left to argue that Trumps conduct surrounding Jan. 6 was so outrageous that it was clearly beyond the scope of his presidential responsibilities. But where exactly to draw that line remained unclear.

The question of the scope of official duties was also at the center of Brooks claim that he should be immune from liability under the Westfall Act, which requires the government to act as the defendant when federal employees are sued for tort liability for official actions. The Department of Justice joined the plaintiffs in arguing that Brookswho spoke before Trump on Jan. 6 and declared that Todays the day American patriots start taking down names and kicking asswas campaigning and therefore acting outside the scope of his official duties; as a result, Brooks should not be immune from civil liability. But Brooks, who argued on his own behalf, emphasized that his motivation in speaking at the Jan. 6 rally was not simply to support Republican candidates in future elections, but also to convince his fellow congresspeople to vote against the certification of the electoral college votes.

First Amendment

The other major hurdle for the plaintiffs is the First Amendment, which generally protects the sort of political speech that Trump, Brooks and the other rally speakers engaged in (and to that extent cannot serve as the predicate for the plaintiffs conspiracy charges). The plaintiffs emphasized that the defendants could be held liable under even the highly speech-protective standard of Brandenburg v. Ohio, which permits liability for advocacy of the use of force or of law except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

In a heated exchange, Binnall, Trumps lawyer, repeatedly pointed to several inflammatory statements that the Democratic plaintiffs had themselves previously made, arguing that if Trumps language was found to be incitement to violence here, but similar language used by others elsewhere was not, the court would be failing to apply the First Amendment equally to Democrats and Republicans. Judge Mehta sharply rebuked Binnall for engaging in whataboutism and for suggesting that he was judging Trump and his co-defendants speech more harshly because of their party.

Like the discussion of presidential immunity, the First Amendment portion of the argument was inconclusive. On the one hand, Trumps words did not explicitly call for violence and were on their face far less inflammatory than what the Supreme Court upheld in Brandenburg and in many cases since. On the other hand, the broader context of Trumps speech, from his months-long campaign to discredit the election to his failure to act after the attack on the Capitol began, suggests, as Mehta noted, that Trumps speech went beyond ordinary political rhetoric, even if it was not the sort of speech that typically qualifies as conspiracy to commit violence.

Ultimately, and despite hours of questioning, Judge Mehta did not tip his hand as to how he will rule on the many complex legal issues that the lawsuits raise. But given the high political and legal stakes, its unlikely that Judge Mehtas decision will be the last word. The parties will almost certainly appeal any outcome to the U.S. Court of Appeals for the D.C. Circuit, and this case may well end up before the Supreme Court, especially on the central issue of presidential immunity.

Read more from the original source:
After Oral Argument, the Future of Thompson v. Trump Remains Unclear - Lawfare

A New Hanover County Board of Education member said a resolution to censure her wont deter her from her mission to hold those on the board, and in the school district, accountable.

The board passed a resolution to censure member Judy Justice in a 5-2 vote Friday afternoonafter Justice was accused of revealing confidential personnel information to someone who was not permitted to have it. Justice said after the meeting she felt the move was personal, and she plans to continue pushing for more transparency from the district going forward.

Im fighting the battles trying to help the district, and when they fight me, theyre in essence fighting against doing good things for the district, Justice said.

Justice and board Vice Chairwoman Stephanie Walker were the only two members to vote against the censure. A censure does not result in any action it's simply a tool to let Justice know the board does not support or agree with her actions.

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Kraybill said after the meeting she was made aware of allegations Justice had violated the code of ethics by disclosing personnel information in the fall. The board previously passed a vote of no confidencein June after then-Chairwoman Stefanie Adams accused Justice of lying during a board meeting.

DuringFriday'smeeting, the board went into a closed session to discuss personnel matters that could not be disclosed to the public. After, Justice was given a chance to address the board and thepublic andbrought forth a list of 10 ways other board members had violated the boards code of ethics that had gone unaddressed.

This witch hunt is personal and everyone on this(board)knows it, Justice said during her statement. It is time we did our job for the people and serve the people, not some peoples individual agendas.

Justice also alleged Superintendent Charles Foust had accused her of harassing him. Attorney Colin Shive interrupted Justice, saying he would advise her to move on from that subject to avoid revealing further personnel information. Kraybillsaid the subject was not germane to the topic at hand.

Justice went on to say it was her first amendment right to bring up the accusation and said she had no intention of bringing up confidential personnel information.

As Justice continued her statement about the alleged harassment, Foust interrupted her, saying he had 275 emails to prove she had harassed him.

I will provide emails if thats what you want, Foust said. You cannot and you will not do that.

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Justice said the emails she sent him had to do with her asking him to do his job. She said after the meetingFoust has not communicated with her in months, though its district policy that the superintendent communicates regularly with members of the board. She alleged he does not respond to her emails or phonecalls, andsaid thats concerning as shewas elected to represent the public before the school district.

Kraybill quickly called the meeting to recess, and she and Foust went to a separate room to speak with Shive. When they returned, Shive called Justice back and spoke with her for several minutes behind closed doors. Walker also went with Justice to speak with Shive.

When Justice returned, she said she felt the censure vote was taking away from important issues going on in the district, like the continued strain on staff and students from the COVID-19 pandemic and decades of sexual abuse allegations against former teachers and administrators.

Several community members attended the meeting as well, holding signs reading I support Judy and attempting to speak with board members while they recessed.

How is this whats best for the kids? one audience member asked theboard, butdid not receive a response.

Kraybill said after the meeting the vote was not personal, and she hopes the board can be unified moving forward to get to those important topics impacting the district.

The community has been very critical of this board, and boards before us about not being transparent, not handling issues in a timely manner," Kraybill said. When I found out that this had occurred, I just said we need to jump on it and get it resolved.

We've got that behind us, and we should be ready to go,shesaid.

Reporter Sydney Hoover can be reached at 910-343-2339 or shoover@gannett.com.

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'This witch hunt is personal': School board votes to censure member in tense New Hanover meeting - StarNewsOnline.com

Alex Zielinski

There was a pain that erupted into violence in our city last night, he told reporters the morning of Saturday, May 30. That is not something we can tolerate.

The curfew, which was extended until the morning of Tuesday, June 2, prohibited Portlanders from traveling anywhere in town from 8 pm to 6 am. The policy exempted people commuting to work, emergency vehicles, and unhoused people.

Now, nearly two years after Wheeler instituted his police-enforced curfew, a Multnomah County defense attorney is challenging the constitutionality of the sweeping policy. Her argument centers on a familiar question in Portland: What authority does the mayor have to limit or restrict demonstrations?

In the process of answering that question, Wheeler may have to testify in court.

The challenge has sprung from a criminal case thats headed to trial next week, after spending months winding through the county court system.

In the early morning hours of Tuesday, June 2, 2020, Portland police officers arrested 23-year-old Tommy Pak as he was walking to his car in Southeast Portland with his girlfriend, following the evenings demonstrations. Officers claimed his arrest was for violating Wheelers curfew (or, refusal to obey executive order) and for interfering with a police officer (by failing to follow an order to disperse). The officers proceeded to search Pak for weapons, and found a gun in his front pocket. That left Pak with two additional charges: unlawful possession of a firearm and possession of a loaded firearm in a public place.

Paks public defender, Emma McDermott, has challenged all four charges in court. Most notably, however, is her multifaceted argument disputing the validity of Paks arrest based on the curfew order.

In a January 11 memo, McDermott contends that Wheelers emergency curfew order didn't give officers permission to arrest anyone who violates it.

A violation of [Wheelers order] is exactly thata violation, McDermott writes. It is not a misdemeanor. It is not a felony.

McDermott referenced an Oregon law which prohibits law enforcement from arresting someone who has committed a violation. State law instead directs officers to issue citations to those who make violations.

Yet this delineation wasnt made in Wheelers order, which read: Law enforcement has been delegated the authority to enforce the Mayors emergency order. Refusal to obey this order may result in citation or arrest.

The Mayors office does not have the legal authority to do this, writes McDermott.

Even if police were allowed to arrest people for violating the curfew, McDermott said Wheelers order remains wholly unconstitutional, as it restricted free speech.

[The curfew] directly targeted political demonstrations, unreasonably restricting legitimate exercise of citizens First Amendment rights, writes McDermott. She suggests that Wheeler used this curfew as a pretext to broadly arrest people participating in the protest who were not breaking the law.

In their response to McDermotts memo, Multnomah County Deputy District Attorneys Sydney Tumble and William Garms contend that Wheelers curfew was constitutional because it was an emergency curfew which, according to the prosecutors, doesnt require free speech protections. The attorneys based this argument on other court cases outside of Oregon that upheld city curfews during an emergency to prevent civil disorder. The prosecutors note that the curfew didnt limit people from demonstrating during daylight hours.

The only restriction was on one form of expression (public gathering) during nighttime hours, their response reads. Given the riotous behavior that had escalated in the city during the previous nights, this was a completely reasonable restriction.

Prosecutors also argue that Wheeler was allowed to threaten those who violated the curfew with arrest, because violating a city codelike a mayor's emergency orderis considered a criminal offense.

Pak wasnt the only person charged with disobeying Wheelers curfew on June 2. County court records show that five other people were charged with refusal to obey executive order the same day. Four of those people were simply given a written citation from an officer, and prosecutors later dismissed the violation. The other individual, Andrew Morris, is facing additional charges identical to Pak.

Like Pak, Morris was initially stopped for disobeying the curfew on June 2, but was then discovered to be illegally carrying a gun after an officers search. Morris lawyer contends that, because this search was conducted without a warrant, it was unconstitutional. McDermott has posed the same argument in Paks case.

McDermott will argue to dismiss Paks charges in court next week. Paks trial is scheduled to begin on January 18, and is expected to last three days.

On Thursday, McDermott sent a subpoena to Wheeler, requesting his appearance in court next week.

Wheeler's office did not respond to the Mercury's request for comment.

This isnt the first time Wheeler has been accused of bending First Amendment rights to restrict public demonstrations. In November 2018, Wheeler attempted to pass a city policy that would have allowed the city to restrict the location and time of two opposing protests. After hearing from civil rights attorneys that this policy would restrict the free speech of non-violent protesters, City Council voted to keep Wheelers ordinance from moving forward. So where does this leave us?" Wheeler asked after the council vote. I'll continue to work with anybody who has a good idea."

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Mayor Wheeler Subpoenaed Over 2020 Curfew Policy - Blogtown - The Portland Mercury