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From Valadez v. St. Joseph the Worker Catholic Church, 2021 WL 6128567, decided Sept. 24, 2021 by Judge Audra Mori (L.A. Superior Court),

Plaintiff, Flavia Valadez filed this action against Defendant, St. Joseph The Worker Catholic Church alleging causes of action for negligence and premises liability. The complaint alleges Defendant caused Plaintiff to fall due to unsafe conditions in and around an unlit staircase at Defendant's property. Defendant now moves for summary judgment. "The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence."

Defendant asserts the incident occurred on April 5, 2017, during a Catholic faith tradition known as the Service of the Light (the "Service") at Defendant's church. In keeping with the tradition, the church was in darkness intentionally at the time of the incident. Prior to the incident, Plaintiff attended the Service since 1997. When Plaintiff entered the church, it was already dark, and when Plaintiff was unable to find a seat in the lower level of the church, Plaintiff went upstairs to find a seat in the balcony, which she had been to five or six times previously. When Plaintiff reached the balcony, it was still dark, as there was only one overhead light shining on the altar. The balcony has four levels or landings on which seats are available. Plaintiff proceeded to a seat, and as she took a step thinking she had reached the last landing, she fell because there was actually one more landing Plaintiff had missed. Defendant avers the only dangerous condition Plaintiff claims caused her fall is the darkness in the church, which prevented her from seeing the landing.

The court rejected the Church's defense that the danger was "open and obvious": Under California law, the court concluded, "if it is foreseeable that a condition may cause injury despite its obvious nature, a duty to correct the danger may exist, and a breach of that duty may form the basis for liability if it proximately causes the injury." But the court concluded that the Church was protected by the "primary assumption of risk" doctrine:

Where, "by virtue of the nature of the activity and the parties' relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury," the assumption of risk "operate[s] as a complete bar to the plaintiffs recovery." {[F]or example in the context of sports, [p]laintiffs assume risks inherent in a sport by participating, and defendants generally owe no duty to protect plaintiffs from such risks but owe a duty not to increase the risks beyond those inherent in the sport.}

The doctrine of assumption of risk is not limited to sports. It applies to activities involving an inherent risk of injury to voluntary participants where the risk cannot be eliminated without altering the fundamental nature of the activity. (Beninati v. Black Rock City, LLC (Cal. App. 2009) [affirming application of assumption of risk doctrine where Plaintiff was burned by remnants of Burning Man effigy while at Burning Man Festival].)

Plaintiff does not dispute attending the Service since 1997 or otherwise being aware darkness was involved in the Service. The church was dark from the time Plaintiff entered the church and went to the balcony where the incident occurred. Nonetheless, Plaintiff chose to participate in the Service, and thus, chose to engage in an activity in which darkness was an inherent part. The risk to persons who voluntarily decide to take part in the Service is self-evident, as participants who attend will be inside the church while it is dark. The risk of falling inside the church while walking or moving around inside while it is dark is an obvious and inherent risk to participating in the Service.

[T]he evidence shows that Plaintiff knowingly chose to walk up to the balcony in the darkness and encounter the subject landings, of which Plaintiff was aware. The darkness was inherent and necessary to the event, and the risk of falling on the balcony while there in the darkness was obvious. It was within the contemplation of the activity.

Furthermore, although Plaintiff contends Defendant increased the risk the darkness posed, Plaintiff does not identify any conduct by Defendant other than the darkness that caused Plaintiff's injuries. Plaintiff argues the darkness together with the faulty stairs caused Plaintiff to fall. However, Plaintiff merely provides the balcony riser where Plaintiff fell presented a height differential of 7-1/4 inches, the subject landing ranged between 33-5/8 and 85 inches in length, and the area features varying tread lengths, but Plaintiff does not submit any admissible evidence explaining why these factors made the balcony dangerous or increased the risk of the darkness. Similarly, Plaintiff does not explain how the other factors Plaintiff identifies increased the inherent risk of the Service, especially whereas here, Plaintiff was aware of the balcony landings. There is no evidence that any action or inaction by Defendant increased the risk of harm to Plaintiff.

Therefore, the doctrine of primary assumption of the risk applies to the activity engaged in by Plaintiff, and accordingly, Defendant owed no duty to Plaintiff to prevent Plaintiff's injuries. The court needs not address the remaining issues.

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The First Amendment Right to Religious Darkness - Reason

Enlarge / A Navy nurse prepares a syringe.

Getty Images | petesphotography

US Navy Seals who objected to COVID vaccination on religious grounds yesterday won a preliminary injunction that prohibits the Navy from enforcing its vaccine mandate.

"Thirty-five Navy Special Warfare service members allege that the military's mandatory vaccination policy violates their religious freedoms under the First Amendment and Religious Freedom Restoration Act," Judge Reed O'Connor wrote in the ruling out of US District Court for the Northern District of Texas. "The Navy provides a religious accommodation process, but by all accounts, it is theater. The Navy has not granted a religious exemption to any vaccine in recent memory. It merely rubber stamps each denial."

O'Connor, who was nominated by President Bush in 2007, found that the Navy service members are likely to win the case on the merits. He granted the injunction prohibiting the Navy from enforcing its mandate against the plaintiffs and "from taking any adverse action against Plaintiffs on the basis of Plaintiffs' requests for religious accommodation."

"The Navy service members in this case seek to vindicate the very freedoms they have sacrificed so much to protect," O'Connor wrote. "The COVID-19 pandemic provides the government no license to abrogate those freedoms. There is no COVID-19 exception to the First Amendment. There is no military exclusion from our Constitution."

The 35 plaintiffs include 26 Navy SEALs, five SpecialWarfare Combatant Craft Crewmen, three Navy Divers, and one Explosive Ordinance Disposal Technician. They sued President Biden, Secretary of DefenseLloyd Austin, the Department of Defense, and Secretary of the Navy Carlos Del Toro. O'Connor dismissed Biden from the lawsuit because the court has no declaratory or injunctive power against the president.

The Department of Defense and Navy can appeal the preliminary injunction ruling to the US Court of Appeals for the Fifth Circuit. In a December 2021 brief opposing the preliminary injunction, the Department of Justice said the motion "ask[s] this Court to intrude into the management of the military by forcing the Navy to considerPlaintiffs medically qualified for continued service in a special warfare unit, eligible for combatmissions, and world-wide deployable. Plaintiffs cite no case that has ever granted such extraordinary relief in the military context, and in fact, they provide no authority supporting the reviewability of military decisions."

"[T]he Navy has a vital interest in maximizing the effectiveness of Naval Special Warfare operations against US enemies and minimizing the risk of error in these critical operations," the US also argued. "The Government's interest in 'maximum efficiency' of Navy SEAL special operations and ensuring their maximum capacity 'of easily and quickly responding to continually changing circumstances' is paramount. The Navy cannot accept any Naval Special Warfare operating conditions that place its success in combat against enemies of the United States at risk of failure."

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While 99.4 percent of active-duty Navy service members were fully vaccinated by early November, the plaintiffs are among the remaining 0.6 percent and belong to the Catholic, Eastern Orthodox, and Protestant branches of Christianity. The plaintiffs' religious beliefs include "(1) opposition to abortion and the use of aborted fetal cell lines in development of the vaccine; (2) belief that modifying one's body is an afront [sic] to the Creator; (3) direct, divine instruction not to receive the vaccine; and (4) opposition to injecting trace amounts of animal cells into one's body," O'Connor wrote.

The Navy has so far denied at least 29 of the 35 exemption requests, has never granted a religious exemption request for the COVID-19 vaccine, and has not granted any religious exemptions for any vaccine in the past seven years, O'Connor wrote. "Several Plaintiffs have been directly told by their chains of command that 'the senior leadership of Naval Special Warfare has no patience or tolerance for service members who refuse COVID-19 vaccination for religious reasons and wants them out of the SEAL community,'" the ruling said.

O'Connor criticized the Navy's 50-step process for evaluating religious exemption requests, writing that "the first fifteen steps require an administrator to update a prepared disapproval template with the requester's name and rank. In essence, the Plaintiffs' requests are denied the moment they begin."

After that, a tentative disapproval letter is "sent to seven offices for review," religious exemption requests from multiple service members are packaged together, and the administrator "prepares an internal memo to Vice Admiral John Nowell, asking him to 'sign... letters disapproving immunization waiver requests based on sincerely held religious beliefs.'" O'Connor continued:

Then, at step thirty-five of the process, the administrator is toldfor the first timeto read through the religious accommodation request. At that point, the disapproval letter has already been written, the religious accommodation request and related documents has already been reviewed by several offices, the disapproval has already been packaged with similar requests, and an internal memo has already been drafted requesting that Vice Admiral Nowell disapprove the religious accommodation request. The administrator is then tasked with reading the request and recording any pertinent information in a spreadsheet. At no point in the process is the administrator given the opportunity to recommend anything other than disapproval. The materials are then sent to Vice Admiral Nowell. The entire process belies the manual's assertion that "[e]ach request is evaluated on a case by case basis."

Read more:
Judge blocks Navy vaccine rule: No COVID-19 exception to the First Amendment - Ars Technica

Marjorie Taylor Greene rages on over losing one of her Twitter accounts due to a long history of spreading COVID-19 misinformation, and sedition. Apparently, the congressperson from Georgia does not understand how free speech and its associated protections work.

Daily Beast:

Nevertheless, Greene has spent the past three days having a protracted meltdown over the decision, and went one step further Tuesday night by effectively accusing Twitter of committing an act of domestic terrorism in deleting her. She told Newsmax: "Twitter has attacked my district, and has attacked I would say our country as a whole by kicking a member of Congress off of their platform And also, remember, they kicked off President Trump while he was a sitting United States president. So Twitter is completely out of bounds. No one elected them. No one put them in charge of what is information or what is misinformation."

Go here to read the rest:
Empty G demonstrates zero knowledge of the first amendment - Boing Boing

In the months leading up to Donald Trumps 2016 election victory, Fox News host Sean Hannity used his massive media platform to openly help his friend defeat Hillary Clintonan approach he justified by insisting that he is not a journalist and does not have to abide by journalistic ethics. Im not hiding the fact that I want Donald Trump to be the next president of the United States, Hannity said in August of 2016, adding: I never claimed to be a journalist. Earlier that year, the Fox News star acknowledged that, if he were to interview Clinton, he would go after her a hundred times harder than any Republican because he is an overtly partisan actor. Im not a journalist, Im a talk show host, he concluded.

However, on Tuesday, Hannitys attorney Jay Sekulow insisted that the House select committee investigating the Capitol riotwhich has released text messages Hannity sent to former Trump White House chief of staff Mark Meadowstreat his client like a journalist and offer him the same protections that members of the press are afforded by the First Amendment. We are evaluating the letter from the committee. We remain very concerned about the constitutional implications especially as it relates to the First Amendment, wrote Sekulow. We will respond as appropriate. Separately, to Axios, Sekulow mentioned concerns regarding freedom of the press.

The text messages in question, which were obtained as part of 9,000 pages of documents that Meadows handed over after being subpoenaed, show how Hannity acted as a key outside adviser for the former president during his final days in office. One week before the Capitol riot erupted, Hannity questioned Trumps strategy to overturn the election and warned that it could result in mass White House resignations. We cant lose the entire WH counsels [sic] office. I do NOT see January 6 happening the way [Trump] is being told, Hannity wrote in an exchange with Meadows. On the night of January 5, Hannity again texted Meadows, writing that he was very worried about the next 48 hours while expressing concern regarding Trumps attempt to pressure Mike Pence into intervening in the elections certification process. On the afternoon of January 6, as violence erupted around the Capitol building, Hannity pleaded with Meadows to try to put a stop to the attack. Can he make a statement? Ask people to leave the Capitol, he wrote. "Ask people to peacefully leave the Capitol.Finally, on January 10, Hannity reacted to the Houses attempt to impeach Trump by telling Meadows and Rep. Jim Jordan that Trump cant mention the election again. Ever. I did not have a good call with him today. And worse, Im not sure what is left to do or say, and I dont like not knowing if its truly understood. Ideas?

The bipartisan committees chair and vice-chair have requested Hannitys cooperation with the investigation. We have no doubt that you love our country and respect our Constitution, wrote committee chair Rep. Bennie Thompson and vice-chair Rep. Liz Cheney. Now is the time to step forward and serve the interests of your country.On the Tuesday night edition of Hannity, the host lashed out at the cowardly swamp creatures and the media mob, though he ultimately dodged the issue by not directly responding to the committees request. He also failed to address the role that his personal messages and advice to Trump have played in the January 6 investigation. Instead, he allowed his attorney to speak for him, with Sekulow releasing his First Amendment statement shortly after the conclusion of Hannitys show.

When asked for comment about the committees request and Hannitys lawyers reference to the First Amendment, a Fox News spokesperson referred Vanity Fair to Sekulow's statement. The question of whether Hannity is a journalist, and subject to any professional and ethical obligations that go along with it, has come up before. While Hannity has both denied being a journalist and described himself as suchIm an advocacy journalist, or an opinion journalist, he said in 2017The Washington Post struggled the following year to get a direct answer from his employer following the revelation that former Trump lawyer Michael Cohen also represented the Fox News host. At the time, a network spokesperson would allow that Hannity is an opinion talk show host.

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Sean Hannity Wants the January 6 Committee to Believe Hes a Journalist - Vanity Fair

There are three flagpoles outside Boston City Hall. One flies the United States flag. Another flies the Massachusetts state flag. What can and cant fly from the third is an issue being taken up by the Supreme Court.

On Jan. 18, 2022, the Supreme Court will hear oral arguments in Shurtleff v. Boston. The case addresses whether the city violated the First Amendment by denying a request to temporarily raise the Christian flag on a flagpole outside City Hall, where Boston has temporarily displayed many secular organizations flags.

The case raises important questions about free speech at a time when many members of the Supreme Court seem concerned about restrictions on religion. The courts decision will likely clarify one or more free speech doctrines, impacting how courts nationwide interpret the First Amendments guarantees.

Shurtleff v. Boston also highlights disagreements about the nature and scope of freedom of speech, the kind of disputes I study in my work on free speech and the First Amendment.

Boston permits groups to request that a flag temporarily fly alongside the American and Massachusetts flags at City Hall to mark special occasions, replacing the city flag that usually occupies the third post. Past examples include flag requests from the Chinese Progressive Association and the National Juneteenth Observance Foundation.

In 2017, Camp Constitution, a New Hampshire-based organization, requested to fly the Christian flag, which has a cross in the upper left corner and was designed by a Sunday school teacher and a missionary executive in the late 1800s. Today, some Protestant denominations display the flag inside their churches.

Camp Constitution asked to fly the flag as part of a planned event to celebrate the civic contributions of Bostons Christian community. The organization says its mission is to enhance understanding of our Judeo-Christian moral heritage, our American heritage of courage and ingenuity, including the genius of our United States Constitution, and the application of free enterprise.

Boston denied the request. The city cited concerns that raising the Christian flag at Boston City Hall would violate the First Amendments establishment clause, which bars the government from promoting particular religions over others. After making a second request, which Boston also denied, Camp Constitution sued.

A federal district court and the First Circuit Court of Appeals sided with Boston on the grounds that flying a flag on the third flagpole was government speech, not private speech and therefore the city was entitled to refuse to fly the Christian flag on its flagpole.

Camp Constitution appealed to the Supreme Court, which granted review.

The cases outcome will likely hinge on the Supreme Courts determination of whose views are represented by the flagpole outside City Hall: the private organization whose flag is temporarily flying, or the government. In other words, this case is about who is speaking when that flag goes up, and whose free speech rights are protected.

If the court determines that Camp Constitution is speaking, then a framework the court has developed, known as the public forum doctrine, will apply. This would likely result in a ruling favoring Camp Constitution.

If the court determines that the city of Boston is speaking, then the courts government speech doctrine will apply. This would likely result in a ruling favoring Boston.

Federal, state and local governments oversee a wide variety of public spaces, such as parks, universities and courthouses, just to name a few. These areas serve different functions, some of which require more regulation of speech than others.

The Supreme Court has organized government spaces into several categories, each of which permits different types of restrictions on free speech. This set of categories and permitted restrictions is referred to as the public forum doctrine.

Spaces like public parks and sidewalks are considered public forums, the category that permits the fewest restrictions on speech. In a public forum, a government can never restrict speech based on viewpoint specific positions on a topic and is severely limited as to when it can restrict speech based on content a given topic.

Normally, a flagpole outside a city hall would not be considered a public forum. However, the Supreme Court also recognizes a separate category, designated public forums, which are spaces the government converts into public forums. In a designated public forum, free speech regulation is limited in the same way it would be in a public forum.

In Shurtleff v. Boston, both parties agree that the area surrounding the flagpole is a public forum. But they disagree over whether the flagpole itself is a designated public forum. Camp Constitution argues that Boston has turned the flagpole into a designated public forum by allowing other groups to fly their flags there. Meanwhile, Boston argues that it has not, because the city retained control by permitting limited types of groups to raise their flags.

Camp Constitution notes that Boston previously approved 284 requests to raise other flags, and that there is no record of a prior request being denied.

But Boston counters that none of those previous requests were for religious flags. The city argues that only two types of flags have been permitted: flags representing territories, nations and ethnicities, and flags associated with publicly recognized days of observance, such as Veterans Day and LGBTQ Pride Month. Boston argues that such limited categories of approval are not what one would expect in a designated public forum, and that this is evidence that Boston has not turned its flagpole into a designated public forum.

[3 media outlets, 1 religion newsletter. Get stories from The Conversation, AP and RNS.]

Over 30 years ago, in Rust v. Sullivan, the Supreme Court recognized that the government itself is a speaker with First Amendment rights an idea known as the government speech doctrine. Government speech is not subject to the public forum doctrine. Instead, the government has much greater discretion in deciding which messages it endorses.

Boston argues that raising a flag on the third flagpole at City Hall is government speech and therefore the city has the right to determine what views it wants to express on its flagpole. Camp Constitution disagrees, maintaining that the flagpole is a designated public forum and therefore few restraints on private groups free speech are allowed on the flagpole.

Both parties arguments rely on competing interpretations of the government speech doctrine put forward by the Supreme Court in two cases, Pleasant Grove v. Summum and Walker v. Texas Division, Sons of Confederate Veterans.

In 2009, the Supreme Court held in Pleasant Grove v. Summum that the permanent monuments in a park owned and operated by the town were government speech. The Supreme Courts unanimous decision allowed the town to deny a request from a small religious group, Summum, to install a permanent monument expressing its beliefs, even though the park had previously accepted a monument of the Ten Commandments.

In 2015, the Supreme Court held in Walker v. Texas Division, Sons of Confederate Veterans that license plates were government speech. This permitted Texas to deny a request for a specialty license plate featuring the Confederate flag, even though Texas offered a wide range of other specialty plates. Unlike Pleasant Grove v. Summum, this case was decided by a slim 5-4 majority.

Shurtleff v. Boston will likely require the court to further clarify the government speech doctrine. The central issue is this: When another flag temporarily replaces Bostons own, who is speaking?

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Can a Christian flag fly at city hall? The Supreme Court will have to decide - The Conversation Africa