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Gene Policinski

By GENE POLICINSKI

At years end, First Amendment issues are as controversial and multi-faceted as anything in our fractured, divided society.

The least-recognized of the amendments five freedoms assembly and petition are facing perhaps the most-immediate challenges,though freedoms of press, speech and religion dont escape unscathed.

Most immediately, a Black Lives Matter activist faces a lawsuit from a Baton Rouge, La., police officer who blamed the activist for injuries he suffered at a 2016 protest over the police killing of a black man. The suit doesnt claim the activist threw or even encouraged the throwing of a rock; rather, it seeks damages because the man led others to block a highway where the violent incident occurred.

A recentWashington Poststory notes that Rep. Jim Banks (R-Ind.) plans to introduce legislation to hold protesters arrested during unpermitted demonstrations liable for police overtime and other fees around such demonstrations.

In more than a dozen states in recent years, from Oregon to Florida, lawmakers have faced proposals to increase penalties for obstructing streets and highways and to limit the financial liability of drivers whose cars injure protesters. In Arizona, a failed 2017 proposal rooted in that states racketeering laws would have permitted the arrest and seizure of homes and other assets of those whom simply plan a protest in which some act of violence occurs.

In a similar financial penalty vein, several major news operations face defamation lawsuits seeking massive damages over their coverage of news events claims certain to roil public debate once again about the role, credibility and performance of the nations free press. Critics also say such lawsuits even if unlikely to succeed are effectively attempts to chill reporting and intimidate corporate owners.

Prominent among those filing the lawsuits is Rep. Devin Nunes, (R-Calif.), whowants $435 million dollars from CNNfor a report he says falsely linked him to events in the ongoing Ukraine-Biden investigation controversy. He also is seeking $150 million fromTheFresno Beeover a report involving a workplace scandal at a winery in which Nuneshas a stake, $75 million from Hearst over anEsquirearticle regarding a family farm in Iowa, with the claim the magazine has an axe to grind against him and a $250 million lawsuit against Twitter for what he says is its intentional effort to downplay conservative content as well as two parody accounts that mock him.

In the introduction to the most recent lawsuit, Nunes says CNN is the mother of fake news. It is the least trusted name. CNN is eroding the fabric of America, proselytizing, sowing distrust and disharmony. It must be held accountable.

Moving to another area of contention, campus free speech issues continue to vex collegiate communities, from complaints that conservative speech and views of faculty and staff are stifled, to a move by President Trump that he says will fight against anti-Semitism but that critics say is really intended to punish student or faculty advocacy for the BDS Movement boycotts, divestiture or sanctions aimed at ending international support for Israel.

Much like the campus controversies, interpretations of religious liberty regarding public policy continued to swirl through the year. As the Supreme Courts 2019-20 term began in October, at least eight cases touching on faith issues the most in recent years were scheduled to be heard. A number involved LGBTQ rights regarding employment or health benefits. While some cases do not directly involve religious organizations, the courts decisions would affect arguments over whether religious beliefs can negate claims of discrimination on the basis of sexual preference.

An expansion of First Amendment protection for commercial speech (which at one time did not exist in law) continues, as courts at least give serious consideration to a variety of business arguments. In several instances, corporate lawyers are arguing that to force companies to make certain disclosures about product content or sources is an unacceptable requirement that violates the First Amendment by forcing companies to speak.

Other cases involve claims of free speech protection for hospitals facing a Trump administration rule requiring disclosure of secret rates. Industry groups filed a lawsuit earlier this month, also claiming it is compelled speech in violation of the First Amendment.

New technology continues inexorably to challenge long-standing law. In a mix of free speech and public safety concerns, a Texas man was sentenced in February to eight years in prison for using a 3-D printer to construct a plastic handgun and ammunition in violation of a prior court order against owning of a firearm. Advocates for the so-called 3-D gun argue the computer instructions in such 3-D printing projects are speech and not subject to federal or state firearms regulations. Government officials say existing criminal law on issues such as possession and manufacturing should allow them to regulate or ban making or owning such weapons.

Government officials and social media critics continue to hammer operations such as Facebook and Twitter which are not government entities, but private concerns not governed by the First Amendment with regulatory threats over political advertising, hate speech and evidence of foreign election interference.

Threatened action ranges from using anti-trust legislation to break up the largest social media companies, to removal of what is known as Section 230 protection for companies (from the Communications Decency Act of 1996) that now permits them to avoid legal responsibility for content they simply carry, rather than material they create or significantly edit.

Opponents of watering down or removing Section 230 protection say either action would, in effect, end the web as we know it by shutting down the flow of information to the mere trickle of items or articles that could be independently verified by internet providers, or to bland factual accounts devoid of opinion or interpretation.

The year 2019 may well go down in First Amendment history as a turning point, in which those working to limit or control information avoided direct confrontations over First Amendment rights and turned to tactics designed to make it much more difficult, much too costly or even financially ruinous to exercise those rights.

Gene Policinski is president and chief operating officer of the Freedom Forum Institute. He can be reached at[emailprotected], or follow him on Twitter at@genefac.

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First Five: We're divided in new ways over 1st Amendment Posted Dec 28, 2019 - Salina Post

Last summer, Keren Lowell posted criticisms of Gov. Mike Dunleavy on social media and helped gather signatures for the petition to recall him. It now appears his administration trampled on those constitutionally protected freedoms by not rehiring her.

The irony of this story is that Dunleavy may have violated Alaska law, the Alaska Constitution and the U.S. Constitution in a more serious way than those stated on the application to recall him.

Lowell is a respected artist and educator who had been employed by the Alaska State Council on the Arts since 2011. In 2018, she was promoted to a position as Visual and Literary Arts Program Coordinator. On her performance evaluation last April, the Councils executive director wrote that its rare for an evaluator to express than an employee is irreplaceable, however, Ms. Lowell is truly a backbone for the agency.

But to Dunleavy, the Arts Council represented a poor use of state funds. He vetoed its entire budget. Lowell lost her job. And after the Councils budget was restored, she was the only staff member not rehired.

Lowell isnt going away without a fight. Writing on her behalf, the American Civil Liberties Union warned Dunleavy that he has until Jan. 9 to return her to her position at the Council with the appropriate back pay and other compensation that adequately addresses the harms she has suffered. Otherwise, theyll take the matter to court.

The ACLU recognizes the possibility that Dunleavy wasnt involved in the decision not to rehire Lowell. However, after referring to his firings of at-will employees when he took office last December, they argue he established a culture which encourages others in his administration to consider a persons political allegiance when make hiring decisions.

Their nine-page letter also references a near unanimous U.S. Supreme Court ruling that protects the freedom of speech rights of government employees on matters of public interest; court precedents prohibiting retaliation against any employee who exercise that freedom; and the high bars the state must overcome before it can legally limit an employees speech or prove that the states interests outweigh an individuals rights.

Whats not mentioned is the constitutional right of state employees to sign the recall petition. Thats probably because theres no evidence that Lowells signature on it had any bearing on the administrations decision not to rehire her.

But this is worth discussing because if the state Supreme Court allows the recall to advance, a second petition must be submitted to the Division of Elections. And state employees should feel secure in their right to sign it without fear of retaliation.

In the U.S. Constitution, petitioning our government is the fifth right stated in the First Amendment. Its unknown to most Americans, says David Shestokas, an attorney and author of the book Constitutional Sound Bites. He states most who are aware of it believe its an extension of the first four rights, and not a right that stands on its own.

Alaskas Constitution clearly separates the right to petition from the freedom of speech. And in the case of initiatives, referendums and recalling elected officials allowed by the Constitution, signing a petition is really an extension of our voting rights.

However, the petition isnt secret like a ballot. Once the Division of Elections completes the signature verification process, for a small fee, anyone can request a copy that includes the names of all the people who signed it.

Lowells story provides evidence people in Dunleavys administration might be monitoring social media for the purpose of identifying employees who arent loyal to the governor. They could conceivably do the same with the recall petitions. And any state employee eligible for step increases or promotions inclined to sign the second one might feel intimidated enough not to do so.

Furthermore, Suzanne Downing shows just how low Dunleavys surrogates will go. The former Communication Director for the Republican Party says she combed through the list of signatures on initial petition looking for names of anybody connected to a news organization, including spouses.

Dunleavy needs to reassure state employees and their spouses that he wont infringe on their constitutional rights to sign the petition. He should issue a public statement that to that effect and warn everyone in his administration that he wont tolerate any form of voter intimidation.

Rich Moniak is a Juneau resident and retired civil engineer with more than 25 years of experience working in the public sector. My Turns and Letters to the Editor represent the view of the author, not the view of the Juneau Empire.

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Opinion: The recall and our constitutional right to sign petitions - Juneau Empire

The least-recognized of the First Amendments five freedoms assembly and petition are facing perhaps the most immediate challenges, though freedoms of press, speech and religion dont escape unscathed.

At years end, First Amendment issues are as controversial and multi-faceted as anything in our fractured, divided society.

The least-recognized of the amendments five freedoms assembly and petition are facing perhaps the most immediate challenges, though freedoms of press, speech and religion dont escape unscathed.

Most immediately, a Black Lives Matter activist faces a lawsuit from a Baton Rouge, La., police officer who blamed the activist for injuries he suffered at a 2016 protest over the police killing of a black man. The suit doesnt claim the activist threw or even encouraged the throwing of a rock; rather, it seeks damages because the man led others to block a highway where the violent incident occurred.

A recent Washington Post story notes that Rep. Jim Banks (R-Ind.) plans to introduce legislation to hold protesters arrested during unpermitted demonstrations liable for police overtime and other fees around such demonstrations.

In more than a dozen states in recent years, from Oregon to Florida, lawmakers have faced proposals to increase penalties for obstructing streets and highways and to limit the financial liability of drivers whose cars injure protesters. In Arizona, a failed 2017 proposal rooted in that states racketeering laws would have permitted the arrest and seizure of homes and other assets of those whom simply plan a protest in which some act of violence occurs.

In a similar financial penalty vein, several major news operations face defamation lawsuits seeking massive damages over their coverage of news events claims certain to roil public debate once again about the role, credibility and performance of the nations free press. Critics also say such lawsuits even if unlikely to succeed are effectively attempts to chill reporting and intimidate corporate owners.

Prominent among those filing the lawsuits is Rep. Devin Nunes, (R-Calif.), who wants $435 million dollars from CNN for a report he says falsely linked him to events in the ongoing Ukraine-Biden investigation controversy. He also is seeking $150 million from The Fresno Bee over a report involving a workplace scandal at a winery in which Nunes has a stake, $75 million from Hearst over an Esquire article regarding a family farm in Iowa, with the claim the magazine has an axe to grind against him and a $250 million lawsuit against Twitter for what he says is its intentional effort to downplay conservative content as well as two parody accounts that mock him.

In the introduction to the most recent lawsuit, Nunes says CNN is the mother of fake news. It is the least trusted name. CNN is eroding the fabric of America, proselytizing, sowing distrust and disharmony. It must be held accountable.

Moving to another area of contention, campus free speech issues continue to vex collegiate communities, from complaints that conservative speech and views of faculty and staff are stifled, to a move by President Trump that he says will fight against anti-Semitism but that critics say is really intended to punish student or faculty advocacy for the BDS Movement boycotts, divestiture or sanctions aimed at ending international support for Israel.

Much like the campus controversies, interpretations of religious liberty regarding public policy continued to swirl through the year. As the Supreme Courts 2019-20 term began in October, at least eight cases touching on faith issues the most in recent years were scheduled to be heard. A number involved LGBTQ rights regarding employment or health benefits. While some cases do not directly involve religious organizations, the courts decisions would affect arguments over whether religious beliefs can negate claims of discrimination on the basis of sexual preference.

An expansion of First Amendment protection for commercial speech (which at one time did not exist in law) continues, as courts at least give serious consideration to a variety of business arguments. In several instances, corporate lawyers are arguing that to force companies to make certain disclosures about product content or sources is an unacceptable requirement that violates the First Amendment by forcing companies to speak.

Other cases involve claims of free speech protection for hospitals facing a Trump administration rule requiring disclosure of secret rates. Industry groups filed a lawsuit earlier this month, also claiming it is compelled speech in violation of the First Amendment.

New technology continues inexorably to challenge long-standing law. In a mix of free speech and public safety concerns, a Texas man was sentenced in February to eight years in prison for using a 3-D printer to construct a plastic handgun and ammunition in violation of a prior court order against owning of a firearm. Advocates for the so-called 3-D gun argue the computer instructions in such 3-D printing projects are speech and not subject to federal or state firearms regulations. Government officials say existing criminal law on issues such as possession and manufacturing should allow them to regulate or ban making or owning such weapons.

Government officials and social media critics continue to hammer operations such as Facebook and Twitter which are not government entities, but private concerns not governed by the First Amendment with regulatory threats over political advertising, hate speech and evidence of foreign election interference.

Threatened action ranges from using anti-trust legislation to break up the largest social media companies, to removal of what is known as Section 230 protection for companies (from the Communications Decency Act of 1996) that now permits them to avoid legal responsibility for content they simply carry, rather than material they create or significantly edit.

Opponents of watering down or removing Section 230 protection say either action would, in effect, end the web as we know it by shutting down the flow of information to the mere trickle of items or articles that could be independently verified by internet providers, or to bland factual accounts devoid of opinion or interpretation.

The year 2019 may well go down in First Amendment history as a turning point, in which those working to limit or control information avoided direct confrontations over First Amendment rights and turned to tactics designed to make it much more difficult, much too costly or even financially ruinous to exercise those rights.

Gene Policinski is president and chief operating officer of the Freedom Forum Institute. He can be reached at gpolicinski@freedomforum.org, or follow him on Twitter at @genefac.

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We're divided in new ways over First Amendment freedoms - Sunbury Daily Item

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.

Read or Share this story: https://www.cincinnati.com/story/money/2019/12/24/strictly-legal-does-first-amendment-matter-black-lives-matter/2702474001/

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