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The Reporters Committee for Freedom of the Press and a coalition of 14 media organizations filed a friend-of-the-court brief last week urging the U.S. Court of Appeals for the Third Circuit to rule that members of the public and press may record bail hearings in Pennsylvania courts, a timely issue given the recent arrests of many demonstrators protesting against police violence and racial injustice.

The Reporters Committee filed the brief in support of the Philadelphia Bail Fund, a nonprofit organization advocating for reform of the citys bail system. In 2019, the Philadelphia Bail Fund filed a lawsuit challenging the constitutionality of certain Pennsylvania court rules that prevent the public, including the news media, from making audio recordings of bail hearings.

During bail hearings in Philadelphia, magistrate judges decide whether defendants should be eligible for release from custody before their court date, as well as how much, if anything, they should pay for their release.

A district court granted summary judgment for the nonprofit in February, ruling that arraignment court magistrate judges must either provide the public official audio recordings or transcripts of the proceedings, or allow members of the public and the news media to make their own audio recordings. The magistrate judges appealed the decision to the Third Circuit, arguing, among other things, that the First Amendment does not guarantee the right to record audio during court hearings.

The Reporters Committees brief urges the Third Circuit to affirm the district courts ruling that the Philadelphia Bail Fund has a First Amendment right to record bail hearings.

In the absence of an official transcript or recording, the challenged rules prohibiting journalists from recording bail hearings impermissibly burden their ability to report about such judicial proceedings for the benefit of the public at large, the Reporters Committee argues in the brief.

Access to bail hearings is especially important in the wake of widespread protests sparked by the May 25 killing of George Floyd, a Black man, by a white Minneapolis police officer. The demonstrations have resulted in a wave of arrests across the country, with Philadelphia police arresting more than 100 people on May 31 alone.

Its crucial that journalists are able to extensively cover bail hearings as the protests continue to unfold and as protesters continue to face arrest. As the Reporters Committee argues in its brief, members of the media serve as surrogates for the public when they report on bail hearings, and the ability to make audio recordings allows journalists to report more comprehensively on the fast-moving proceedings, which take place 24 hours a day.

The brief notes that news reporting over the past few years has shown the public the disparate effects that the bail system can have on communities of color and the poor. Philadelphia is among the cities in which journalists have reported on the bail system.

For example, the 2019 Amazon docuseries Free Meek, which chronicled the 12-year legal battle of Philadelphia rapper Meek Mill, highlighted systemic flaws in the Pennsylvania state court bail and probation systems. Mill was convicted in 2008 on drug and firearm charges, but prosecutors claim there are credibility issues with the police officer who was a critical witness in the case. After the original conviction, Mill was caught in a probation trap, which is a problem for many in Pennsylvania, according to the Philadelphia Inquirer.

Read the full Reporters Committee brief.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.

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RCFP: Public, press have First Amendment right to record bail hearings - Reporters Committee for Freedom of the Press

Conner Drigotas Published 11:00 p.m. ET June 11, 2020

As Michigan reaches almost two weeks of largely nonviolent protests, trouble is brewing at the federal level that could impact the civil liberties of citizens exercising their First Amendment rights.

As demonstrations unfolded across America following the killing of George Floyd, President Donald Trump said hed label Antifa a terrorist organization. Despite uncertainty as to what authority this declaration-by-tweet carries, the Department of Justicemoved to take action. According to a press release put out the same day by Attorney General William Barr, Federal law enforcement actions will be directed at apprehending and charging Antifa leadership.

While anti-protest factions may celebrate this move now, Barrs broad policy is a danger to the First Amendment promises of free speech and free assembly for everyone. Indeed, laws like the Patriot Act remove key civil rights protections for anyone defined as a terrorist, justly or otherwise. Even now, the Drug Enforcement Administration (DEA) has been given new powers to begin surveillance of protestors.

President Donald Trump speaks during a roundtable discussion in the Cabinet Room at the White House, Wednesday, June 10, 2020, in Washington.(Photo: Patrick Semansky, AP)

The Barr Memorandum also leaves open how the Justice Department may choose to define membership in what is clearly a grassroots effort. The civil rights implications are significant, and according to some, Trumps declaration may not be legally binding. It may take years to get a court ruling, but in the meantime, Trumps declaration seems likely to fan the flames.

The impact of this executive power could also be unpleasant for Conservatives. Outspoken groups like the Tea Party, regional militia groups, or local organizations that wouldnt support a liberal presidents agenda may find themselves under fire, corralled, and imprisoned under this broad order. When a left-leaning future president is running the White House, these precedents could be used in the same irresponsible fashion. Domestic terrorism is poorly defined, leaving discretion to unelected bureaucrats.

Arresting and prosecuting those who see chaos as an opportunity to loot and destroy private property is one thing. In this case, however, the federal government is also being opportunistic, expanding powers at a moment where checking overreach is essential. The protests are, in many ways, protesting overreaching government power, albeit channeled through police departments. The American people need less big brother and more local control to effectively quell violence and address issues of police misconduct. We wont heal the cultural divide by empowering a more hierarchical power structure. If a president can define American citizens as terrorists via tweet, making them felons, we are all at risk of losing our rights.

Some may think this analysis is overdramatic. The best-case scenario is that those critics are correct. History, however, has shown that silencing opposition is a typical step toward authoritarianism. In an attempt to bring order, extensive government powers have become law under the guise of restoring order during times of unrest.

The voices on the right and left seem to be speaking different languages. Something is lost in translation between the conservative drive for law-and-order and the lefts push for justice and equality. Small-government conservatives are a rarity right now, but that voice is needed. We need principles, not politics, to reign in the power of the growing state. Both sides of the ideological spectrum should work together to address the growing concerns about police militarization.

Some conservatives are rightly questioning the police practices that are foundational to the modern conception of law and order. But not enough, and not in the highest levels of government, where policy is set. This is a quintessential example of how government grows when partisan politics run the system. As one party seeks to make a power play against its opposition, shortsighted policy making enshrines governmental powers long past the current moment. Trump shouldnt have this power, nor should anyone else.

If the goal is to improve our culture, pursue a better future for all people, and seek justice when systemic violence occurs, the answer is, as it has always been, more liberty and less government.

Conner Drigotas is the director of communications and development at a national law firm and is a contributor to Young Voices, a nonprofit providing pro bono media placement services to young conservative writers. He lives inBethlehem, Pennsylvania.

Read or Share this story: https://www.detroitnews.com/story/opinion/2020/06/12/opinion-trumps-antifa-crackdown-could-cause-trouble/5337478002/

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Opinion: Trump's Antifa crackdown treads on First Amendment - The Detroit News

from the humdinger dept

Almost exactly a year ago, we first wrote about a trademark lawsuit brought by AM General LLC, the company that makes Humvee vehicles, and Activision. At issue is the inclusion of historically accurate Humvee vehicles in the publisher's Call of Duty games. AM General decried those depictions as trademark infringement, leading Activision to say its use was protected by the First Amendment, given that the entire goal here was to accurately depict warfare in an artistic fashion. Shortly after, the ESA chimed in with an amicus brief siding with Activision. Given the implications for the gaming industry should AM General win the suit, this was no surprise.

Well, fortunately for creative expression in gaming, the court has ruled and has sided with Activision.

In his ruling this week, though, District Judge George B. Daniels dismissed AM General's claim. That decision hinged in part on a 1989 precedent that established that artistic works could make reference to outside trademarks as long as the usage was relevant to the work and did not "explicitly mislead as to the source of the content or work."

The court then went through an eight-prong "Polaroid" test (named after a precedential 1961 case) to determine whether Activision's use of Humvees amounted to a legally relevant "explicit misleading" that would trump First Amendment protections. As part of that argument, AM General submitted a survey it conducted showing 16 percent of consumers "were confused as to AM General's association with Call of Duty." As Judge Daniels notes, "less than 20 percent confusion regarding two companies' 'association'... is at most some confusion" and does not amount to the "particularly compelling" confusion required by legal precedent.

The court actually continued on in its analysis as to why AM General's claims were nonsense. It's a fairly thorough debunking by the court. Ultimately, however, the court dove into the impact that ruling otherwise would have on the First Amendment rights for artistic expression in mediums where realism is part of the art.

Daniels writes that "if realism is an artistic goal, then the presence in Modern Warfare games of vehicles employed by actual militaries undoubtedly furthers that goal." And even if that commitment to realism causes a modicum of brand confusion in this case, it's not enough to override the First Amendment protections that video games have enjoyed since a 2011 Supreme Court ruling.

In other words, the tiny bit of maybe, potentially confusion that AM General ginned up in its filing doesn't remotely undue the protections artists and content creators enjoy for free and open expression. You know, the type of freedoms that the US Military has helped our country secure... often times using Humvees!

It's good to see a court side with free expression over corporate protectionism every once in a while.

Filed Under: 1st amendment, humvee, trademark, video gamesCompanies: activision, am general

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Federal Court Affirms Activision's First Amendment Rights In Using Humvees in 'Call Of Duty' Game - Techdirt

There are some measures officials can use to limit protests, and it's easy to accidentally tiptoe into legally murky territory if you don't know the specifics.

So before you go, read up.

Timothy Zick is a professor of Government and Citizenship at the College of William & Mary Law School. He specializes in constitutional law and the First Amendment, and he's written several books about both, including 2009's "Speech Out of Doors: Preserving First Amendment Liberties in Public Spaces."Emerson Sykes is a staff attorney with the ACLU's Speech, Technology and Privacy Project, who studies free speech protections under the First Amendment. Previously, he worked at the International Center for Not-for-Profit Law to protect free speech in Africa.

1. What are my rights as a protester?

The government can't stop you from peacefully protesting, but they can impose some restrictions on the time, place and manner of the protest -- for example, barring protesters from walking onto a public highway or instituting a curfew that affects when protests end, Sykes said.

They can't block a protest simply because of its content, though.

If protests are planned in advance, organizers may obtain a permit so law enforcement can block off public spaces for them to demonstrate, Sykes said.

The First Amendment does not continue to protect protests that escalate to violence or the destruction of private or public property, he said.

That's when law enforcement has the obligation to respond and deescalate threats of violence, he said.

2. Where can and can't I protest?

A slew of public spaces are OK for protests -- sidewalks, city parks, streets and other public forums are usually lawful, Sykes said.

Some states require you file a permit to block off streets, and the right to assembly doesn't give you the automatic right to march on a public highway, Zick said.

People can be arrested or cited for blocking passage, he said.

On private property, you don't have the right to assemble.

Zick called it the "no man's land" in terms of the First Amendment, and police can move you off the property and keep you from demonstrating there.

They may even have that right to move you even if you're on public property. Special rules apply to government buildings because protests may disrupt business going on inside, Sykes said.

If the protest was permitted, you should be allowed to stay where you are -- but leaving the permitted protest site may unintentionally lead you into prohibited places, he said.

3. Can police or local leaders tell us to disperse?

It depends, Sykes said: If a mayor pleads with people to go home, you have no legal obligation to comply.

If you stay on the street past a curfew -- or if you protest on private property -- you may be cited or arrested.

4. What can I record?

Different states have different rules about audio recording and sharing that without the consent of the people whose voices you recorded, but the visual portion of videos and photos are always protected by the First Amendment, Sykes said.

If you're interfering with legitimate police operations, they can ask you to move. It's best to videotape them from a safe distance.

Police can't ask you to give them your phone or forcibly confiscate it without a search warrant, which they would've needed to obtain from a judge, he said.

5. Someone took a picture of my face at a public protest. Is that allowed?

At a public protest in the United States, you consent to a photo just by being there. Anyone who photographs you protesting in a public place may have a right to use your image, and you may see images of yourself in the media or online, Zick said.

6. What should I pack to stay safe at a protest?

Pack light, Sykes said. He suggests you bring water and a snack at minimum. If you bring a bag, prepare for it to be searched.

In a pandemic, wearing a mask can keep you from breathing in droplets containing coronavirus. Coming within close contact of other protesters could expose you to their spit or sneezes, which may carry the coronavirus.

And if you fear you'll be arrested and will need legal help, memorize or write on your arm the number to a local or national law organization that could assist you in getting out of jail and handling your case afterward, Sykes said.

7. What can -- and can't -- police do during a protest?

It's the responsibility of police to protect your right to peaceful assembly.

They're also empowered to uphold law and order, which gives them broad authority to deescalate threats of violence how they see fit.

How they deescalate that violence depends on local laws and the circumstances under which they use them, which can be difficult to prove in court if you believe they used force unlawfully, Zick said.

Like Sykes said, police do not have the right to search your phone or personal devices without a warrant, which only a judge can grant them.

They also don't have permission to delete content from your phone, so if they tell you to delete a video you took or delete it themselves, they're in the wrong, he said.

8. What can I do if a police officer stops me?

Stay calm. Don't resist. Ask them if you're free to go after speaking with them, Sykes said. If they say yes, calmly walk away and rejoin the protest if it's safe to.

If they say no, and they detain you, don't resist and keep calm, Sykes said. Ask them what crime you're suspected of committing.

9. What can I do if I get arrested?

Some people get arrested intentionally as a form of civil disobedience. But whether or not you planned to get handcuffed, you shouldn't resist arrest, Sykes said.

It's the best chance you have to stay safe.

During your arrest, you can remain silent, as is your right, Sykes said.

In some states, police are permitted to know your name if they ask, but they don't have the right to know where you're from or your citizenship status, he said.

You can also ask for a lawyer -- remember that number you held onto for legal support.

If you're booked into jail, call a lawyer immediately, Sykes said.

Police can't listen in on your call if you're phoning a lawyer, but they can listen in if you're calling a friend or family member, so be aware, he said.

10. What can I do if I feel law enforcement or other officials violated my rights?

You can sue for civil rights violations.

Some protesters file large class-action suits that are occasionally successful, and sometimes authorities can pay damages when they decide litigation isn't worth it, Zick said.

But qualified immunity can shield officers from civil liability if they didn't violate a clearly established law, he said.

Qualified immunity is a legal doctrine that protects police officers accused of interfering with constitutional rights from being liable unless they violated a clearly established and defined law.

The lines are blurred at protests of what police are allowed to do and what constitutes overreaching, so "clearly established" constitutional rights are difficult to determine, Zick said.

In this way, many police officers are protected by qualified immunity, Sykes said.

11. Can my workplace fire me if they find out I attended a protest?

That depends on the contract you made with your employer when you were hired, but yes, it's possible, Sykes said.

You have stronger constitutional protections for what you do outside of work, but depending on what you agreed on when you were hired, a company may be able to terminate your employment, he said.

Read more:
If you're planning to take part in protests, know your rights. Read this. - CNN

Thanks to spax for compiling and sharing this great list of resources including this weekends planned marches and protests.

From MPD:

On Saturday, June 13, 2020 and Sunday, June 14, 2020, multiple First Amendment demonstrations are scheduled to occur in the District of Columbia. In conjunction with these events, there will be street closures and restrictions that motorists should take into consideration:

The following streets will be posted as Emergency No Parking for the demonstrations beginning on Saturday, June 13, 2020 at 6:00 am and extending through Sunday, June 14, 2020 to 11:59 pm:

Constitution Avenue from Pennsylvania Avenue, NW to 17th Street, NWPennsylvania Avenue from 3rd Street, NW to 15th Street, NWIndependence Avenue from 3rd Street, NW to 14th Street, SWConnecticut Avenue from I Street, NW to L Street, NWVermont Avenue from I Street, NW to L Street, NWI Street from 14th Street, NW to 17th Street, NWH Street from 14th Street, NW to 17th Street, NWK Street from 14th Street, NW to 17th Street, NWNew York Avenue from 14th Street, NW to 15th Street, NW17th Street from Constitution Avenue, NW to L Street, NW

(both side of Farragut Square)

16th Street From H Street, NW to O Street, NW15th Street from Constitution Avenue, NW to L Street, NW

(both sides of McPherson Square)

14th Street from Independence Avenue, SW to K Street, NW12th Street from Constitution Avenue, NW to Pennsylvania Avenue, NW10th Street from Constitution Avenue, NW to Pennsylvania Avenue, NW9th Street from Constitution Avenue, NW to Pennsylvania Avenue, NW7th Street from Independence Avenue, SW to Pennsylvania Avenue, NW6th Street from Constitution Avenue, NW to Pennsylvania Avenue, NW4th Street from Independence Avenue, SW to Pennsylvania Avenue, NW3rd Street from Independence Avenue, SW to Pennsylvania Avenue, NW

On Saturday, June 13, 2020 at 6:00 am to 11:59 pm the following streets may see restrictions to vehicular traffic at intermittent times. On Sunday, June 14, 2020 beginning at 4:00 am to 11:59 pm, the following streets will be closed to vehicular traffic. If street closures are made in the following locations, vehicles will be allowed to enter the restricted area if they are on essential business or traveling to-and-from their residence.

Constitution Avenue from Pennsylvania Avenue, NW to 18th Street, NWPennsylvania Avenue from 3rd Street, NW to 15th Street, NWPennsylvania Avenue from 17th Street, NW to 18th Street, NWIndiana Avenue from 6th Street, NW to 7th Street, NWJefferson Drive, SW from 3rd Street to 14th Street, SWMadison Drive, NW from 3rd Street to 14th Street, NWC Street from 17th Street, NW to 19th Street, NWC Street from 3rd Street, NW to 6th Street, NWD Street from 3rd Street, NW to 8th Street, NWD Street from 17th Street, NW to 18th Street, NWE Street from 12th Street, NW to 18th Street, NWF Street from 12th Street, NW to 18th Street, NWG Street from 12th Street, NW to 18th Street, NWH Street from 12th Street, NW to 18th Street, NWI Street from New York Avenue, NW to 18th Street, NWK Street from 9th Street, NW to 18th Street, NWConnecticut Avenue from H Street, NW to L Street, NWVermont Avenue from H Street, NW to L Street, NWNew York Avenue from 9th Street, NW to 15th Street, NWNew York Avenue from 17th Street, NW to 18th Street, NW17th Street from Constitution Avenue, NW to L Street, NW16th Street From H Street, NW to O Street, NW15th Street from Independence Avenue, SW to L Street, NW14th Street from Independence Avenue, SW to L Street, NW13th Street from Pennsylvania Avenue, NW to E Street, NW11th Street from Constitution Avenue, NW to E Street, NW10th Street from Constitution Avenue, NW to E Street, NW7th Street from Independence Avenue, SW to E Street, NW6th Street from Constitution Avenue, NW to E Street, NW4th Street from Independence Avenue, SW to Pennsylvania Avenue, NW

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Street Closures for this weekend's "multiple First Amendment demonstrations" + a Great List of the Upcoming Protests & Events - PoPville