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The following article is from the National Right to Work Legal Defense Foundations bi-monthly Foundation Action Newsletter, November/December 2019 edition. To view other editions or to sign up for a free subscription, click here.

Alaska Gov. Mike Dunleavy (left), following an opinion from Attorney General Kevin Clarkson, ordered all Alaska state agencies to protect state employees First Amendment rights under Janus.

ANCHORAGE, AK In late September, Alaska Governor Mike Dunleavy signed an executive order to protect the First Amendment rights of state employees established in last years Janus v. AFSCME Supreme Court decision. The order calls for the State of Alaska to stop deducting union dues from the paycheck of any worker who hasnt filed a form with the state affirmatively waiving his or her First Amendment right under Janus not to fund any union activities.

The move follows a letter last year sent by National Right to Work Foundation Legal Director Raymond LaJeunesse to state comptrollers in Alaska and other states, urging them to modify dues deduction policies to comply with the Janus decision.

Foundation Comments Detail Need to End Dues Deductions Uncompliant with Janus

The Foundation also recently filed comments with the Federal Labor Relations Authority (FLRA) regarding the need for the federal government to take steps to protect the First Amendment rights of employees recognized in the Foundation-won Janus decision. The Foundations comments were submitted after the U.S. Office of Personnel Management (OPM) asked the FLRA to solicit public comments on how to proceed with union dues deductions in light of the Supreme Courts Janus decision last year.

In that case, the High Court held that requiring public employees to pay union dues or fees without their consent violates the employees First Amendment rights by compelling them to subsidize private speech on matters of substantial public concern. Justice Samuel Alitos opinion for the court further ruled that no union dues or fees could be taken from a public employee unless the employee affirmatively consents to pay using a freely given waiver of his or her First Amendment rights.

Consistent with that standard, the Foundations comments urge the FLRA to issue guidance to agencies that they must cease deducting union dues from the wages of employees who signed a dues deduction form that does not satisfy the [Janus] standard. According to Department of Labor statistics, nearly one million federal employees 26.4% of all federal workers are union members, many of them likely having dues deducted from their paychecks despite never having knowingly waived their First Amendment right not to subsidize union activities.

The Foundation comments make clear that these dues deductions should cease in the wake of Janus. To comply with Janus, workers wanting to voluntarily pay union dues can either provide the government with a valid waiver of their rights or pay dues on their own without using taxpayer-funded payroll systems to forward the money to union officials.

The Foundations comments to the FLRA further argue that, even where workers provide a valid authorization for dues deductions that meets the Janus standard, the government shouldnt block them from revoking that authorization if the request is submitted at any time at least a year after the Janus-compliant authorization was obtained.

Foundation Comments Push to End Union-Created Window Period Scheme

Unfortunately, agencies and union officials often prohibit federal employees from stopping the seizure of union dues from their wages except during short annual escape periods. The comments filed by the National Right to Work Foundation say that this practice does not comply with Janus either.

The Janus precedent is very clear about this: Without affirmative and knowing waivers from public workers, government entities cannot collect union dues without violating a workers First Amendment rights, commented National Right to Work Foundation President Mark Mix.

Currently, the government seizes union dues from almost one million federal employees in violation of the Janus decisions First Amendment standard. Federal agencies are obligated to protect workers constitutional rights in this rulemaking process.

Since the Janus decision last year, Foundation staff attorneys have been fighting to ensure public workers First Amendment rights are protected, litigating more than 30 cases in federal courts across the country to enforce the landmark ruling.

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National Right to Work Foundation Foundation Urges Federal and State Governments to Protect First Amendment Rights - National Right to Work Foundation

Jack Greiner Published 5:17 a.m. ET Dec. 24, 2019

Jack Greiner, attorney for Graydon(Photo: Provided, Provided)

The United States Court of Appeals for the Fifth Circuit issued a recent ruling reversing the dismissal of a negligence case brought by a Baton Rouge police officer against Black Lives Matter activist DeRay Mckesson. The officer was injured in a protest McKesson organized in July, 2016.

The majority decision is interesting, but this is a case where the dissent may get more of the attention. In any event, the First Amendment issues matter.

The injured police officer filed the suit anonymously, so the opinion referred to him as Officer Doe. The court recited the facts as follows: On July 9, 2016, a protest illegally blocked a public highway in front of the Baton Rouge Police Department headquarters. . . . The Baton Rouge Police Department prepared by organizing a front line of officers in riot gear. These officers were ordered to stand in front of other officers prepared to make arrests. Officer Doe was one of the officers ordered to make arrests. DeRay Mckesson, associated with Black Lives Matter, was the prime leader and an organizer of the protest. In the presence of Mckesson, some protesters began throwing objects at the police officers. . . . The dismissed complaint further alleges that Mckesson did nothing to prevent the violence or to calm the crowd, and, indeed, alleges that Mckesson incited the violence on behalf of [Black Lives Matter]. . . . At some point, an unidentified individual picked up a piece of concrete or a similar rock-like object and threw it at the officers making arrests. The object struck Officer Does face. Officer Doe was knocked to the ground and incapacitated. Officer Does injuries included loss of teeth, a jaw injury, a brain injury, a head injury, lost wages, and other compensable losses.

Officer Doe contended thatMckesson was negligent for organizing and leading the Baton Rouge demonstration because he knew or should have known that the demonstration would turn violent.

In reversing the trial courts dismissal of Officer Does suit, the appellate court relied heavily on the fact that part of the protest involved the unlawful act of blocking a public highway. In the appellate courts view, that meant it was patently foreseeable that the Baton Rouge police would be required to respond to the demonstration by clearing the highway and, when necessary, making arrests. This knowledge apparently imposed a duty on Mckesson to exercise reasonable care in conducting his demonstration. Which means, I guess, he had a duty to make sure none of the protestors got violent. Seems like a tough standard to put on Mckesson.

And dissenting judge Don Willett (appointed by President Trump for anyone who is curious) agreed. He was skeptical that Mckesson assumed any such duty, framing the question whether the mere fact that a protest may become violent means that the protest organizer is liable for any violence that occurs. And as he noted, if theres no duty, theres no negligence. And if theres no negligence, theres no case. He urged the federal court to certify the case to the Louisiana Supreme Court to determine if Mckesson even had a duty. But he was outvoted.

Judge Willett also noted that even if Mckesson owed some sort of amorphous duty, the First Amendment would prevent the case from going forward. Judge Willett wrote that the First Amendment protects even impassioned and emotionally charged appeals for the use of force . . . unless [it is] clearly intended to, and likely to, spark immediate violence. The complaint cited to no facts to demonstrate Mr. Mckesson ever directed his followers to engage in direct acts of violence, nor does it indicate that Mr. Mckesson directed or controlled the assailant who actually injured Officer Doe. Absent those type of allegations,Mckessons speech, including his efforts to organize the protest, was protected by the First Amendment.

Judge Willett noted that in his last protest, Martin Luther King led demonstrators in a march down the streets of Memphis. During the march, some young men began breaking storefront windows. Police moved in and peaceful demonstrators as well as looters were injured. As Judge Willett noted, [h]ad Dr. King been sued, either by injured police or injured protestors, I cannot fathom that the Constitution he praised as magnificenta promissory note to which every American was to fall heirwould countenance his personal liability.

Judge Willett admitted that he had initially voted with the majority, but decided to change his mind. In doing so, pointed to one of my favorite quotes from Justice Felix Frankfurter, who said 70 years ago, [w]isdom too often never comes, and so one ought not to reject it merely because it comes late.

I think hes right.

Jack Greiner is managing partner of Graydon law firm in Cincinnati. He represents Enquirer Media in First Amendment and media issues.

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Strictly Legal: Does the First Amendment matter to Black Lives Matter? - The Cincinnati Enquirer

First amendment rights in the United States only go so far. Shout fire in a crowded room for thrills or threaten to kill someone and you will find yourself on the wrong side of the First Amendment interpretation of what constitutes free speech. Joseph Cecil Vandevere was indicted, then convicted for posting a Twitter message in March 2018 that threatened then-Virginia State Senate candidate Qasim Rashid.

Vandevere was charged with interstate communication of a threat to injure a person. On Dec. 6, he was convicted by a federal jury for using social media to communicate interstate threats, said Andrew Murray, U.S. Attorney for the Western District of North Carolina.

Using social media to communicate threats does not qualify as free speech, Murray said. A threat is a threat, whether its communicated face to face, in writing or online. My office will hold accountable those who use any online form of communication to transmit threats.

On March 13, 2018, Vandevere, using the twitter name of @DaDUTCHMAN5, tweeted a photo of a lynching accompanied by the comment, VIEW YOUR DESTINY. The FBI interviewed Vandevere in July 2018, at which time he admitted to using social media under pseudonyms to send threatening messages.

Vandever said he made the threat Rashid because he did not agree with Rashids beliefs. The FBIs search of Vandeveres residence and computers provided evidence of similar harassment of other entities including a Florida synagogue using an alias Facebook account.

The judge dismissed the argument that Vandeveres tweet was protected by the First Amendment. Vandeveres attorney argued that his client wasnt a threat and no responsible person would interpret this communication as a serious expression of intent to do harm.

Well, theres federal statute 18 U.S. Code 2261A. Stalking. This statute specifically calls out actions that place a person in reasonable fear of death or serious bodily harm. Rashid noted that over the past few years he has referred approximately a dozen threats against him to law enforcement. Vandeveres threat was the first time one of his complaints evolved to a criminal charge. The threats spike, he said, whenever anti-Muslim rhetoric is shared by the political leadership of the United States.

FBI special agent in charge, John Strong, noted, Social media allows you to share your views with the world in seconds, but it does not give you the right to threaten violence against others. The FBI stands ready to investigate whenever threatening language crosses the line to a crime.

Vandevere faces up to five years in prison and a $250,000 fine.

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First Amendment Fight: Twitter Threat Ends in Conviction - Security Boulevard

Some who have heard that President Trump cannot block people from his Twitter account think other elected officials cannot block people. This is wrong. Almost all elected officials can block people from their Twitter accounts and not violate the First Amendment.

The part that is missed is the first five words of the First Amendment "Congress shall make no law." It was designed to limit what laws Congress could create. In doing so it also limits the executive branch as its relevant authority is derived from the laws passed by Congress. The First Amendment thus stops executive officials in their official capacity from limiting speech they don't like, but doesn't stop individuals acting in their private capacity.

For official government accounts, for instance @WhiteHouse or @DepofDefense, upon creating that account the government creates a designated public forum in which people are allowed to response to the tweets issued by these official accounts. If the government were to block people from responding to these accounts because the government didn't like their opinions, it would be engaged in viewpoint discrimination that is prohibited by the First Amendment. However, if Twitter allowed accounts to turn off all responses, this would likely be allowed, as it wouldn't be discriminating based on viewpoint.

But most elected officials are legislators and not even a part of the executive branch. They almost always created these accounts long before they were in office as their personal account. Even a campaign account would still be private, not a government account. The First Amendment only limits the laws that Congress passes as a body, it does not limit individual members of the legislature. You have no right, for instance, to invade the home of a congressman to protest some issue that is their property.

The story becomes a bit more complex for the accounts of the president and vice president. They are a part of the executive branch and so are limited in their official acts by the First Amendment. The official accounts of the president, for instance @POTUS, are government accounts created and set up as a designated public forum by the government and thus the government is limited by the First Amendment.

But what about @realDonaldTrump? Is that an official account? Trump acknowledged that he uses the account to, among other things, "announce official decisions." The president used the account to announce the nomination of the new FBI director and his new ban on transgender individuals in the military.

Given these facts the 2nd Circuit Court of Appeals found that the president had chosen to transform his personal account into the official government account of his office as president. This means that he is no longer able constitutionally to block people from responding to his tweets based on viewpoint.

The problem for the 2nd Circuit is when did this occur? By what act did the president transform his previous private account into the public one of his office? Merely speaking about his official acts through the account isn't enough. The 2nd Circuit isn't exactly clear as to when this happened. The fact that the account was created before Trump was president and will likely continue as a private account after he leaves is a strong factor suggesting the 2nd Circuit may be wrong and that other courts may decide the same issue differently.

But, at least for Trump, it doesn't matter as the 2nd Circuit has decided that Trump has adopted his Twitter account as an official account of his office and therefore cannot block people. This reasoning doesn't apply to almost any other elected official. Even Vice President Pence has not used his account in the same way that Trump has and could still block people.

It is possible the 2nd Circuit decision will apply to some state governors and other state executive branch officials. It will turn on whether those officials used their Twitter account as the official account of their office, such as announcing official decisions and designating the accounts as their "official" accounts of their office.

But almost all elected officials are in the legislature, either federal or state, and as such their Twitter accounts cannot possibly be limited by the First Amendment. There was no law upon which such accounts base their authority, and so the First Amendment simply doesn't apply.

Devin Watkins is an attorney for the Competitive Enterprise Institute.

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PRO/CON: Can elected officials block individuals on social media? Yes - The Intelligencer

Evangelicals who minimize the importance of President Donald Trump's judicial appointments betray a naivete about the perils to religious liberty in the United States, perils that have been growing over the past decade.

Many people, outside of the relatively small group of constitutional law professors and Supreme Court and appeals courts practitioners, may not grasp the sheer number of cases on the religious clauses of the First Amendment that have reached the high court in recent years. Six of these cases illustrate the stakes. (There are scores more religious liberty cases that are resolved in federal district and circuit courts, as clashes between the world of faith and the vast administrative state in the United States accelerate.)

In 2014, in Burwell v. Hobby Lobby Stores , the Supreme Court decided, by a 5-to-4 vote, that the Affordable Care Act's mandate that for-profit corporations supply their employees with contraceptives -- even forms of contraception violating the corporations' owners' beliefs -- was barred by the Religious Freedom Restoration Act. Had the court majority gone the other way, there is no doubt that Hobby Lobby, a company employing 32,000, would have closed. The Green family, who owns that company, was not going to "bend the knee" to the demands of the government had they lost. Justices Anthony Kennedy and Antonin Scalia sided with the company's religious liberty interests.

Also in 2014, in the case Town of Greece v. Galloway, the court -- again by a vote of 5 to 4 and again with Kennedy and Scalia in the majority -- held that a town's practice of opening its town board meetings with a prayer offered by members of the clergy did not violate the Constitution's establishment clause because that practice was consistent with the tradition long followed by Congress and state legislatures. Greece did not discriminate against minority faiths in determining who offered prayers, and the prayers did not coerce participation by anyone. Secular absolutists wanted this and similar practices in other jurisdictions banned.

The court in 2017, by a vote of 7 to 2, ruled in Trinity Lutheran Church of Columbia Inc. v. Comer that excluding religious organizations from aid programs run by governments violates the free exercise clause of the First Amendment. That two members of the court thought religious preschools were banned from state grants to upgrade playgrounds for safety purposes illustrates just how extreme is the anti-religion animus among some within the judiciary.

The court's 2018 ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission upheld the right of a baker to refuse to make a cake for a same-sex wedding, but only because the Colorado Civil Rights Commission seemed hostile toward religion. Don't be misled by the 7-to-2 vote. It was a very close-run decision. Meanwhile, the persecution of the baker by Colorado's extreme anti-faith militants has continued.

The court, also in 2018 and again by a 5-to-4 vote, held in National Institute of Family Life Advocates v. Becerra that a California law violated the First Amendment because it required "pro-life" pregnancy centers to provide notices about the availability of abortion services. These centers are almost always run by faith-based groups. The California law was a "jam down" statute by the anti-pro-life forces dominant in the California legislature, which has moved further to the left in recent years.

The Supreme Court held the line against absurd interpretations of the Constitution's bar on establishment of religion in 2019's American Legion v. American Humanist Association. Although the lower court had ordered the demolition of a large cross that had stood in a public park in Maryland for a century, the court -- voting 7 to 2 -- held that the display and maintenance of such a large memorial by a local government did not violate the establishment clause. Keep in mind the lower court had held exactly the opposite.

Battles over religious liberty continue. The court has recently agreed to review decisions by the U.S. Court of Appeals for the 9th Circuit crucial to the future of religious education. The high court's decision should arrive by June. In this proceeding, the decisions of two Catholic schools -- St. James School in Torrance, Calif., and Our Lady of Guadalupe School in Hermosa Beach. California -- concerning two teachers and whether they could continue to teach at these schools were upheld by trial courts but reversed by two different panels of the 9th Circuit, thought the most liberal circuit court in the country. This is a major free-exercise case that will affect tens of thousands of faith-based schools.

Critics of the president who play down the importance of Trump's judicial appointments make an enormous mistake. For those whose faith is crucial to their lives, "Trump judges" make all the difference in the world.

Hugh Hewitt hosts a nationally syndicated radio show on the Salem Network. The author of 14 books about politics, history and faith, he is also a political analyst for NBC, a professor of law at Chapman University Law School and president of the Nixon Foundation.

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Column: Evangelicals should thank Trump for protecting their religious liberty - The Oakland Press