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Yesterday's Minnesota Voters Alliance v. Walz, decided by Judge Patrick J. Schiltz (D. Minn.), correctly rejects the argument that the Minnesota mask mandate "violates the First Amendment because it does not permit them to enter indoor public spaces without face coverings as a way to protest the requirement that they wear face coverings when they enter indoor public spaces":

The Supreme Court has recognized that expressive conduct may be entitled to a measure of First Amendment protection. In general, courts evaluate the validity of a law that regulates expressive conduct under the standard articulated in United States v. O'Brien (1968). This does not mean, however, that every law regulating conduct is subject to scrutiny under O'Brien whenever an individual decides to violate the law for the purpose of sending a message.

If combining speech and conduct were enough to create expressive conduct, a regulated party could always transform conduct into "speech" simply by talking about it. For instance, if an individual announces that he intends to express his disapproval of the Internal Revenue Service by refusing to pay his income taxes, we would have to apply O'Brien to determine whether the Tax Code violates the First Amendment. Neither O'Brien nor its progeny supports such a result.

To merit First Amendment protection under O'Brien, then, the conduct regulated by the challenged law must be "inherently expressive." Here, the conduct at issue is not inherently expressive. [A]n observer would have no idea why someone is not wearing a face covering. Absent explanation, the observer would not know whether the person is exempt from EO 20-81, or simply forgot to bring a face covering, or is trying to convey a political message. That fact takes the conduct outside of the First Amendment protection afforded by O'Brien.

Even if wearing or not wearing a face covering was inherently expressive, EO 20-81 is clearly constitutional, whether analyzed under O'Brien or Jacobson. Under O'Brien,

a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

There is no question that Minnesota has the constitutional authority to enact measures to protect the health and safety of its citizens. Likewise, there is no question that EO 20-81 furthers the substantial government interest in controlling the spread of a deadly and highly contagious disease. As discussed above, federal health officials recommend face coverings as an effective way to slow the spread of COVID-19, and this recommendation finds support in recent studies.

Finally, EO 20-81 is unrelated to the suppression of free expression and has at most an incidental effect on First Amendment freedoms that is no greater than necessary; plaintiffs are free to express their opinions about EO 20-81 in every conceivable way except by violating its provisions and putting at risk the lives and health of their fellow citizens.

Likewise, EO 20-81 is constitutional under the standard established in Jacobson v. Massachusetts (1905), which requires courts to examine whether a measure adopted to address a public-health crisis has a "real or substantial relation" to the crisis and, assuming that it has such a relation, whether it is "beyond all question, a plain, palpable invasion" of a constitutional right.

Link:
Mask Mandate Doesn't Violate the First Amendment - Reason

Editor,

I find myself writing another letter to our community newspaper. No, Im not mad, angry, nor riding a high horse pushing a candidate for elective public office. Believe it or not, it is because of a small, square white sticker tag attached to front of my Saturday newspaper.

For simplicity, Ill refer to it as the civility tag. Yes, a call for civility in the wild, one could say. That being wilderness of discontent we find ourselves in today, I presume. Asking for or suggesting the signing of a civility pledge of a local group promoting civility.

Yes, I believe the tag, as well as the group, are well intentioned.

Freedom of speech, as granted in our Constitution with few if any restrictions on ways of expression, does not include civility as a stipulation or requirement. Civility is an ambiguous term anyway. Meaningful in different ways to different folks.

Speaking for myself, I found it to be a Trojan horse of censorship.

This time of discontent we find ourselves in a period of history in the making and, I believe, most exercises of our inherited freedoms have been reasonably presented.

I understand others may disagree, but there is the value in freedom of speech, discussion and debate.

Thomas Strang

Coupeville

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Letter: 'Civility' is not mentioned in the First Amendment - South Whidbey Record

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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