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Protesters gather in front of the Mark O. Hatfield federal courthouse in downtown Portland, where some demonstrators have been arrested and others released from jail on the condition that they not attend any more protests. Spencer Platt/Getty Images hide caption

Protesters gather in front of the Mark O. Hatfield federal courthouse in downtown Portland, where some demonstrators have been arrested and others released from jail on the condition that they not attend any more protests.

A number of people arrested at demonstrations in Portland, Ore., say the terms of their release prevent them from attending protests going forward, a stipulation First Amendment experts have called cause for concern.

ProPublica reported on Tuesday that at least a dozen protesters arrested in recent weeks are prohibited from attending demonstrations within city or state limits, or in general, while they await trials on federal misdemeanor charges. Protesters say this was one of several conditions including abiding by a curfew, avoiding the area surrounding the federal courthouse and appearing for court dates that they had to agree to in order to leave jail.

Bailey Dreibelbis, 23, is one such protester. He told NPR's Vanessa Romo that he was arrested on the evening of July 22 and released the following afternoon on certain conditions, including that he would not attend any more protests in Portland.

Of the terms of his release, Dreibelbis said his public defender was "pretty clear that if I wanted to be out of there that day, that I would have to take them."

"She kind of chuckled with me, because I didn't do anything illegal upon arrest," he added. "I did not assault an officer, I did not set anything on fire."

Dreibelbis said he entered an open fence outside the federal courthouse, noting he did not see signs or hear announcements about that area being off limits. A spokesperson for the U.S. Attorney's Office said Dreibelbis was charged with failing to comply with a lawful order, which is a class c misdemeanor.

Like Dreibelbis, other protesters are facing charges in connection with petty offenses that took place on federal grounds.

According to ProPublica, 18 of the 50 protesters charged in Portland are accused of only minor offenses under federal law that criminalizes certain actions when they happen on federal property or against people on that property. These behaviors include "failure to obey a lawful order" and "disorderly conduct."

Fourteen protesters were charged with "failing to obey a lawful order" between July 21 and July 24 alone, ProPublica found.

Orders setting conditions for release, reviewed by ProPublica, were signed by a federal magistrate in Portland. Kevin Sonoff of the U.S. Attorney's Office said in an email to NPR that the prosecutors didn't seek the "no protest" restriction, that it was added by the court. He said the office did ask for those released to be barred from a five-block limit around the federal courthouse.

"This morning, we joined the Federal Public Defender's Office in jointly recommending to the court that these additional release conditions be modified," Sonoff said.

Dreibelbis told NPR he hadn't initially planned to attend a protest that night he said he roller skates after work and ended up in that part of town and is now barred from attending any other protests.

Legal experts told NPR that such a stipulation almost certainly violates individuals' First Amendment rights to free assembly.

"These conditions are deeply troubling and likely unconstitutional," Ramya Krishnan, staff attorney at the Knight First Amendment Institute, wrote in an email. "A blanket ban on attending future protests in the city seriously infringes on the First Amendment right to free assembly, and isn't reasonably related to any legitimate goal of pretrial release."

Enrique Armijo, a law professor at Elon University, explained that it is not uncommon for criminal defendants to give up certain rights as a condition of their release, but those conditions are typically very narrow, in the interest of public safety and tightly connected to the basis of prosecution.

The agreements in Portland, he said, are overly broad in that they do not show a clear public safety connection between the right the person is being asked to give up and the harm that person is alleged to have committed.

"There's no way you can say that because of something you may have done with respect to federal property, a federal court is going to say you cannot engage in First Amendment-protected activity in the entire city in which that federal property is located," Armijo said. "That's just the definition of what First Amendment law considers overbreadth: What you're being asked to give up is much, much greater from a constitutional perspective than that which you are alleged to have done."

Elizabeth Goitein, who codirects the Brennan Center for Justice's Liberty & National Security Program, said this kind of "blanket First Amendment restriction" violates one of the most core constitutional rights.

"The fact that these people may or may not have committed a misdemeanor is irrelevant, they certainly haven't been tried or convicted of any such offense and they are presumed innocent until proven guilty," she said. "Even after someone has been convicted of an offense, that does not mean that the government can require them to give up First Amendment freedoms going forward."

Goitein also noted that this practice raises red flags even beyond Portland because it could potentially happen in other cities.

"It's a problem if it happens once," she said. "And if it's happening systemically across a major city in this country, we need to be extremely concerned."

People have gathered for demonstrations against racism and police violence in Portland every night since the death of George Floyd in May, with tensions escalating after the Trump administration deployed federal agents to the city to protect the federal courthouse there earlier this month. Oregon Gov. Kate Brown said federal agents will begin a phased withdrawal on Thursday.

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For Some Arrested At Portland Protests, Release Is Conditional On Not Attending More - NPR

ANCHORAGE COULD BAN SOME FORMS OF THERAPY FOR GAY CLIENTS

On Tuesday, the Anchorage Assembly will take up an ordinance that would prohibit counselors and therapists from helping young clients who are struggling with unwanted homosexual thoughts, gender dysphoria, or other gender identity or sexual variations.

Offered by three gay members of the Anchorage Assembly, the ordinance would mandate that if a minor wants counseling for unwanted sexual urges or expressions, therapists would have to end the counseling session and show their client the door. Families could, of course, travel to Palmer or Wasilla for such counseling, but it would not be available in Anchorage.

Opponents of the measure say the ordinance would infringe on the First Amendment rights of both patients and therapists, and put a chill on therapists who believe a young person is experiencing a temporary identity problem and want to explore what may be going on in that young persons life.

The ordinance leans on the authority of a three-part story by the Anchorage Press that says persons who are homosexual are discriminated against. In the third part of the series, the Anchorage Press calls gender therapy Conversion, The real hell, focusing on two minors who had therapy forced on them by their parents.

The ordinance would not prevent pro-gay counseling and hormone therapies to assist a young person in presenting as the opposite sex or following romantic attractions with the same sex, but would prevent a counselor or therapist from any communication that would discourage that road for their patients.

In an Alaska Family Council workshop for pastors and others concerned that their religious freedoms or patient-therapist relationships are being infringed upon, Peter Sprigg of the Family Research Council warned that sexuality among minors can change as children grow in or out of experimentation phases.

He said that the ban on counseling is a form of viewpoint discrimination by a governing body, and that is a constitutional infringement on many levels.

Going to counseling is deeply personal experience that involves viewpoints, perceptions, and emotions, and if therapists think they are going to be sued because they ask questions of their patients, it will make therapists suppress their own viewpoints.

Sprigg added that parents are in charge of the health care and development of their children, something that has been upheld numerous times at the U.S. Supreme Court, and that there are minors who do want to undergo counseling for homosexual urges.

He also faulted the ordinance because it refers to licensed counselors, but doesnt say who the licensing authority is. In some cases, churches sanction or license counseling services through ordination.

[The entire ordinance in its current form is at this link.]

The meeting starts at 5 pm, but the public is not allowed to attend, per an order by Mayor Ethan Berkowitz. You can find the full agenda and watch the proceedings at this link.

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Assembly to look at limiting First Amendment rights of therapists and clients - Must Read Alaska

A few weeks ago, the Texas Supreme Court made headlines by warning state officials that there was not, in fact, a pandemic exception to the United States Constitution. This past week, however, the U.S. Supreme Court seemed to create one. In an order that surprised even the liberals at Vox, the Supreme Court blessed a Nevada law that preferences casinos over churches. The decision has no basis in First Amendment law and establishes a worrisome precedent for government overreach in times of crisis.

Located in Dayton, Nevada, Calvary Chapel is a small, rural church that wishes to host worship services for about 90 congregants, which is 50% of its fire-code capacity. Calvary Chapels reopening plans are more than compliant with state and CDC requirements. A limited, 45-minute service (half the normal length), one-way entrance and exit footpaths, six-feet of separation between families, a prohibition on passing items, and sanitization between services are just some of the measures proposed by Calvary Chapel.

Yet Nevada forbade Calvary Chapel from opening its doors. In a breathtaking assertion of governmental power premised on COVID-19, Gov. Steve Sisolak (a Democrat) issued a directive that severely constrains church attendance. No church, synagogue, mosque, or other place of worship may admit more than 50 persons no matter the building capacity or safety measures employed.

The fact that these restrictions do not apply to casinos, gyms, bowling alleys, restaurants, or bars should have made Calvary Chapel Dayton Valley v. Sisolak an easy case. It is blackletter law that strict scrutiny applies to government restrictions on religious exercise that are not neutral and of general applicability. If the Free Exercise Clause means anything, it means government may not single out the religious for disfavored treatment. Yet, that is precisely what Nevada has done. While limiting church attendance to 50 people, Nevada allows the casino down the street to admit thousands of people, up to 50% of their maximum capacity.

Further, casinos are not the only venues that are treated more favorably than churches. Other commercial interests, such as bars, gyms, and restaurants, may also operate at 50% capacity. In fact, tournament bowling alleys in Las Vegas seat hundreds of spectators, and like casinos, can admit up to 50% of capacity. State guidelines provide that groups of up to 50 people may sit together in bowling alley grandstands. Meanwhile, the synagogue down the street is limited to 50 total worshippers.

On Friday, in a one-sentence order that contains not a word of explanation, a sharply divided 5-4 Supreme Court denied Calvary Chapels application for an injunction restraining the state of Nevada from enforcing its 50-person limit on religious services.

Justices Samuel Alito, Brett Kavanaugh, and Neil Gorsuch each authored a dissent arguing that Nevadas reopening plan discriminated against religious services in violation of the First Amendment.

As Alito explained, a public health emergency does not give public officials carte blanche to disregard the Constitution for as long as the medical problem persists. Rather, officials are required to craft policies that account for constitutional rights.

This principle is hardly new. In 1866, involving events at the height of the Civil War, the Supreme Court held that the Constitution may not be modified in times of crisis. Rather, our founding charter applies at all times and under all circumstances. Indeed, the court could not think of any other doctrine involving more pernicious consequencesthan that any of its provisions can be suspended during any of the great exigencies of government.

If only the current Supreme Court would return to this view. As Gorsuch explained, the world we inhabit today, with a pandemic upon us, poses unusual challenges. But there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.

All is not lost, however. Although Calvary Chapel will not receive its injunction, the courts still have a chance to consider the case on the merits and to ensure that the First Amendments protections apply at all times and in all circumstances.

Erin Hawley is a senior legal fellow at Independent Womens Law Center and a former clerk to Chief Justice John Roberts of the Supreme Court of the United States.

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There are no exceptions to the First Amendment, even in a pandemic - Washington Examiner

PEN America says federal agents are not above the rule of law in repressing and attacking protesters and reporters

(New York, NY) Reports have emerged that federal authorities have required detained protesters in Portland to commit to not attending further protests as a condition for release, and that federal officers have shot at and maced reporters and legal observers covering protests. PEN Americas director of U.S. free expression programs Nora Benavidez released the following statement in response:

Forcing First Amendment-abiding protesters to sign away their right to demonstrate to be released. Law enforcement using live ammunition against reporters and legal observers. These are gross violations of the First Amendment. Federal agents are not above the rule of law, and certainly not above the Constitution. The actions unfolding in Portland are aimed not only at silencing dissent, but also silencing the reporters and journalists working to reveal whats happening on the ground. This has to stop. Freedom predicated on silence isnt freedom at all.

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Federal Authorities' Conduct Against Protesters and Reporters in Portland Gross Violations of the First Amendment - PEN America

TOPLINE

The U.S. House of Representatives on Thursday blocked an amendment to its Defense Appropriations bill for fiscal 2021 that would have barred the U.S. military from recruiting on video game streaming sites like Amazon's Twitch, with the amendment's author Rep. Alexandria Ocasio-Cortez (D-N.Y.) saying on the floor, "War is not a game."

NEW YORK, NY - APRIL 14: Representative Alexandria Ocasio Cortez (D-NY) speaks at a press conference ... [+] at Corona Plaza in Queens on April 14, 2020 in New York City. Ocasio-Cortez was joined by Senate Minority Leader Chuck Schumer (D-NY) at the conference, where both called for the Federal Emergency Management Administration to fund funeral costs in low-income communities of color during the ongoing amid the coronavirus pandemic. (Photo by Scott Heins/Getty Images)

"This amendment is specifically to block recruitment practices and funding for recruitment practices on platforms such as Twitch.tv, which are live-streaming platforms which are largely populated by children well under the age of military recruitment rules," Ocasio-Cortez said.

While Republicans unanimously opposed the measure, Democrats were split, with Ocasio-Cortez taking to Twitter during the vote to say, "Imagine trying to explain to your colleagues who are members of Congress what Twitch is."

The U.S. Airforce, Army and Navy all sponsor esports teams with members streaming to Twitch, but recent controversies prompted concerns over the recruitment practice.

Twitch stepped in to stop the Army from using a faux giveaway to redirect viewers to a recruitment form, and lawyers from the Knight First Amendment Institute at Columbia University demanded that the Army and Navy reverse bans on their Twitch channels against a user who asked about U.S. war crimes in the channels' chats.

Rep. Pete Visclosky (D-Ind.), who chairs the Defense Appropriations Subcommittee, spoke out against the amendment during debate, saying, "The United States Military is a very special place...we oughta cast a very wide net to encourage young Americans to serve their country in the military."

Visclosky argued the military conducts educational programs for young people, but Ocasio-Cortez responded, "Children on platforms such as Twitch are bombarded with banner ads that link to recruitment sign up forms that can be submitted by children as young as 12 years old. These are not educational outreach programs but recruitment forms."

Referencing first-person shooter games popular with military members streaming on Twitch, like Call of Duty, Ocasio-Cortez said, "We cannot conflate war and military service with this kind of gamified format." She later tweeted, "Its totally fine if you dont know what Twitch is, but tech literacy is becoming an [sic] growing need in Congress so we can legislate to protect peoples privacy."

Using games as a means to recruit young people into the U.S. military isnt new. In 2002, the Army launched the America's Army series of video games, the latest being the free-to-play America's Army: Proving Grounds. "Funded by the Army Marketing and Research Group, America's Army, the official game of the U.S. Army, delivers an authentic and entertaining Army experience by reflecting the values, training, technology, skills and career advancement of a United States Army Soldier," the official video game page reads. Proving Grounds is rated Teen, meaning the content in the game is suitable for people ages 13 and older.

Following the accusations that the U.S. Army violated the first amendment right to free speech by banning a Twitch user from its channeljust as President Trump is restricted from blocking Twitter usersthe military branch told GameSpot that it would pause activities on the platform and "review internal policies and procedures, as well as all platform-specific policies, to ensure those participating in the space are clear before streaming resumes. The "About" page for the Navy's esports channel reads, "Other people will tell you not to stay up all night staring at a screen. Well pay you to do it."

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House Blocks AOC's Amendment To Bar U.S. Military From Recruiting On Video Game Streaming Sites Like Twitch - Forbes