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Today the ACLU of Idaho will be participating in a court argument that is crucial for the future of corporate whistleblowers rights and their ability to photograph wrongdoing. The argument, before the federal 9th Circuit Court of Appeals in Seattle, is to consider the constitutionality of a so-called Ag-Gag law enacted in 2014 by the state of Idaho.

The other day I spoke with ACLU of Idaho Legal Director Richard Eppink, and he explained whats at stake:

A number of states have passed these Ag Gag laws. Idahos version makes it a crime to use a misrepresentation to gain access to, or employment at, an agricultural production facilityplaces like factory farms and slaugterhouses, but also encompassing a bunch of other places by the way they define this. Its aimed primarily at journalists and undercover investigators.

Idahos Ag Gag statute also makes it a crime to take video or audio recordings in these places without the owners permission. So, workers who want to document unsafe working conditions, investigators who want to document animal cruelty, people who are just visiting a farm and want to document what they seeanything like that would be punishable in Idaho by up to a year in jail. And youd have to pay twice the "damages" that were caused to the agricultural production facility as a result of your recording. This is specifically targeted at organizations like Mercy for Animals and the Animal Legal Defense Fund, which have exposed animal cruelty and put it on the Internet.

Eppink told me that the ACLU of Idaho lobbied against this law when it was in the legislature in 2014. They were joined by a wide spectrum of allies, including animal rights and welfare organizations, labor unions, and reporters groups. Also opposing the law were immigrant rights groups; in Idaho, as in most places, a lot of the agricultural work is done by immigrants, many of them undocumented, who are exposed to some of the most dangerous working conditions. This law would prevent them from being able document those conditions.

Nevertheless, the Idaho legislature passed, and the governor signed, the law. Aftewards, Eppink told me,

the Animal Legal Defense Fund contacted us to see if wed be interested in joining them in a lawsuit, which we decided to do. Its a facial challenge to the law both on First Amendment speech grounds and equal protection grounds, and has a diverse group of plaintiffs from the same groups that lobbied against the bill.

We won the first round when the federal district court struck the law down on both speech and equal protection grounds. The state appealed to the 9th Circuit, and now were defending that victory on appeal. Justin Marceau, a Denver law professor who works with the Animal Legal Defense Fund, will be arguing in Seattle on Friday and I will be there with him.

I asked Eppink: what about the argument that. while Americans have a First Amendment right to take photographs of things in plain view in public spaces, its also true that (as we describe in our Know Your Rights guide for photographers) private property owners have the right to set rules about the taking of photos and videos on their property? His response:

Certainly all of us have a right to control what happens on our private property. But remember that were not talking about the privacy of the home herewere talking about a heavily regulated industry that affects all of us: food production. And most of us dont have the state government coming in and jailing people and making them pay twice the business loss caused by bad publicity from release of a video of behaviors the public finds abhorrent. In the past weve always left damage settlements to private disputes between individuals. Certainly I can call the police if somebody is trespassing, but its another thing entirely to add criminal penalties when property owners say Not only were they trespassing, officer, but they took a video that I dont like!

Overall this argument is significant for us all because it has implications that go far beyond agriculture. As Eppink put it:

This law strikes at the core assumption that I think many of us had up to this point, which is that undercover journalistspeople like Upton Sinclair who wrote The Junglehave been serving an important role in exposing to the public whats happening in their food production systems and other industries that we enjoy the benefits of.

And all of us working against this law understand that agriculture is being used as the test case for this type of law, and that if it succeeds in withstanding constitutional challenge, and the courts say yes you can criminally punish anyone for taking video, then well almost certainly see this law spread to other industries like mining and even banking.

In other words, the risk is that well set up a society where businesses and corporations can have cameras on us everywhere we go, but we cant document whats happening in these places. It will be the property owners who by and large have the power of the camera to present their side of the story using video without the rest of us being able to present ours.

The 9th Circuit is expected to hand down its ruling later this year.

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Federal Appeals Court Hears Crucial Case on First Amendment and Photography - ACLU (blog)

by Maggie Dolan

Question: When is a Congressmans Town Hall not really a Town Hall?

Answer: When it is held in the auditorium of a house of worship on private property.

Freedom Caucus Member Rep. Dave Brat (R-VA-7) hosted his second Town Hall of 2017 on May 9, 2017 at the Clover Hill Assembly of God in Chesterfield County, Virginia, the home church of his co-host for the event, state Senator Amanda Chase. Well known to the national and international media for his January 2017 remarks, the WOMEN are in my grillto hold a Town Hall, Brats only previous Town Hall in 2017 was held in a tiny restaurant in Blackstone, VA, a remote rural area of his district at which signs and posters were forbidden and questions had to be submitted on note cards, provided at the event, to a moderator who then selected which ones Brat would be asked. Brat followed up with two pop up town hall meetings: one at a small tire shop and the other at another small restaurant- pop up because he only gave 24 hours notice of the events and held them on weekdays in the middle of the week at times when most of his constituents would be at work.

Following the Blackstone event, the Virginia ACLU notified Brat in writing that forbidding signs and posters at his Town Hall events was a violation of his constituents Constitutional rights to free speech.

Immediately following the House of Representatives narrow passage of the AHCA bill on May 4, 2017, Brat announced by email that a Town Hall for his district which would be held during the ten-day House recess. The email laid out the rules:

1.) admission would be by ticket only. A limited number of free tickets would be available online. No person without a ticket would be permitted inside the Town Hall. The Town Hall would start at 7 PM with ticket holders admitted beginning at 6:30 PM. A wait list was available for those unable to confirm a ticket. Wait list individuals would be admitted at 6:55 PM if space was available.

2.) In order to facilitate a meeting where everyone can have an unobstructed view, and where we do not leave litter behind in the facility; no signs, placards, banners, or flyers will be permitted in the meeting. No information was given as to the total number of tickets available, the number allocated in advance to Brat supporters, or the number allocated to Sen. Chase and her supporters.

Tickets were seized quickly once announced. Those trying to obtain one after 30 minutes, were told the event was sold out and they could sign up for the wait list. On the afternoon of the event, however, a second Brat email went out which said, All tickets available for the event are accounted for at this time. We do not anticipate granting entrance to anyone who is not holding a ticket that is in their name (we will be checking photo ID at the door). And because it is private property andon-site parking is limited, no one will be admitted to the parking lot without a ticket. The Virginia ACLU was notified and promptly sent another letter to Brat sternly reminding him that prohibiting signs, posters and banners at his public Town Hall event would be considered a First Amendment violation.

With two public schools available across the street and dozens more in his district, the decision to hold the event in a private property church was a strategic one on Brats part.

It allowed him to skirt the Virginia ACLUs earlier warnings about free speech infringement. As private property owners, the church leadership would be free to set the rules regarding admission, denying admission and presence of signs, banners, flyers and posters on their property. Additionally, the church owners could, and did, have armed Chesterfield County police posted at the driveway entrance checking for tickets, at the church doors, and inside the church turning aside anyone with a sign, poster or banner, forcing them to go to a sidewalk across the country road.

Ticket holders lined up at the church doors beginning at 5:45 PM and were individually checked to make sure their photo ID exactly matched the name on the ticket. No wait-listed individuals were admitted at 6:55PM. Instead these individuals were denied entrance and ordered to exit church grounds. The church doors were then closed and guarded by armed Chesterfield County police. Inside the church, estimates of the crowd were 400-500 people, but livestreaming video showed rows and rows of empty seats even 20 minutes after the meeting had begun.

Hearing of the empty seats from their friends inside, some people from across the road approached the church doors asking to be admitted since seating was available. Police officers politely but firmly said no and escorted them back across the road.

Reporters from most local, national and international media covered the event. These journalists, whose first mission is to investigate and inform the public, duly noted the crowd size and tone. Click bait adjectives rowdy, raucous, unruly, booing, jeering, interrupting were widely used, Although the press is currently under attack by this administration and a journalist in West Virginia was arrested that same afternoon for asking a question of HHS Tom Price, the First Amendment, did not seem to be on any of the reporters radar.

No one from the media commented on the implications of holding a meeting as a civic voice for constituents in a house of worship, Christian worship at that, given that other venues were readily available.

The crowd of people across the street, numbering over 100 individuals, staged a Die In. One outraged would-be-participant made a video of the group of people gathered there, expressing their frustrations and clearly stating the First Amendment violations that were being perpetuated by Brat and Chase and being ignored by the media.

7th District Concerned Citizens Video

Wait-Listed Constituents Stage Die In

When the Town Hall began with a Christian prayer offered by the church pastor, members of the audience held up red pieces of paper to show their disapproval of this. Throughout the 90- minute meeting, which dealt primarily with attendees objections to the recently passed healthcare bill, Sen. Chase repeatedly scolded the crowd for their boisterousness, at one point standing up and shouting, This is MY Town Hall nowso sit down. and threatened to remove noisy people from the building. She ordered the armed police officers to the center aisle to implement this. The police didnt remove anyone. Brat reminded the crowd, as he does multiple times in every meeting, that he is an economist and that he went to seminary. (Brats economic theory is based on his Calvinist beliefs.) He returned to his favorite themes of the Judeo-Christian foundations of our country and health care as a predictable free market commodity. When a questioner said that health care is a human right, Brat countered the question with, .I dont think yall want the separation of church and state () In the west rights come from God. In a press interview immediately following the event, Brat was asked how excited he was about the bill, he replied, Im a Calvinist, he said. Im the frozen chosen. Im an economist. So, its likeexcitement? Whatever. He also added, I dont think people get that excited on policy in general,

Chase added that it is the responsibility of the church, not the government to protect the poor, needy and vulnerable. If a person needs help they should join a church.

Historically, Thomas Jefferson and James Madison (both of whom Brat quotes frequently when it suits his purpose) disagreed on several issues in their writings, but on one thing they were both clear: separation of church from government is essential and must be preserved. Madison wrote:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

They were so committed to this belief that they enshrined it as the First Amendment to the newly-written Constitution of the fledgling nation. All other rights which they listed in the following nine Amendments known as the Bill of Rights, come secondary to these First Amendment rights.

Choosing a church as venue for the Town Hall was a calculated move by Dave Brat to infringe upon the First Amendment rights of those who wished to attend.

It was the critical first decision from which all other decisions for the event could legally follow, like toppling dominos. Because of that first choice by Brat, the subsequent decisions by the church leaders could not be disputed. Hence, as private property owners, the church leaders were within their rights to restrict attendance and deny wait-listed individuals from entry to a public Town Hall event. They were also within their rights to prohibit signs, banners, flyers and posters on their property and require that the audience submit questions on note cards instead of verbally to Brat.

Why would a Congressman host a Town Hall meeting in a church when multiple other public venues were available? Was his intention really to listen to his constituents concerns as their elected representative and to respond to them? What happened that night, and in the emails from Brats office leading up to it, was a clear and intentional assault upon the principle of separation of church and state on which our country is founded and the accompanying First Amendment rights to Free Speech and Free Assembly.

Dave Brat imposed his personal Christian beliefs on his constituents and allowed that belief system to control and exclude them, hoping no one would notice or call him on it.

In the current administration, we have become increasingly dependent on a free press to provide accurate information and analysis of a rapidly changing and fearfully-confusing time for our nation. Its not uncommon for politicians to give talks to church congregations. In some Congressional districts, Town Halls are held in churches because the church is the largest space for public gathering, but thats not the case in Brats district and certainly not in Chesterfield County. The fact then that no one in the media recognized this as a violation and sounded an alarm is especially worrisome. Perhaps if the co-host had been a non-Christian and had held the event in a non-Christian house of worship and had begun it with a non-Christian prayer, the flagrant violation would have been more apparent and noted.

Brat has greased a slippery slope. His deliberate decision to use a house of worship instead of a nondenominational venue for a civic event is not an inconsequential occurrence but rather a skillful ploy to manage his constituents into a situation that is less threatening to himself, but very threatening to their constitutional rights. It is an act of insidious guerrilla warfare on our most important constitutional rights. Failure to respond to his actions with strenuous public and media objections will normalize this abnormal, unacceptable and unconstitutional action and set precedent for further encroachment. If we dont seize this opportunity to make our voices heard loudly, clearly and to multiple audiences, this experience will not be the last time Dave Brat or other elected officials employ this method to control and exclude their constituents

More here:
Dave Brat's Horrible, Terrible, No Good Problem with the First ... - Blue Virginia (press release) (blog)

Attorney General TJ Donovan. Photo by Anne Galloway/VTDigger

VTDigger is filing the amicus brief in an appeal to the Supreme Court of Vermont. Other news outlets and transparency groups have signed on, including the New England First Amendment Coalition, the Caledonian Record, Seven Days and the Vermont Press Association. An amicus, or friend of the court brief, is a filing made by a party that is not a litigant but has significant interest in the outcome of a case.

VTDigger, other news outlets and transparency groups argue that the courts ruling undermines the Vermont Public Records Act by placing private accounts beyond scrutiny even if they contain records related to public business.

The purpose of Vermonts public records law is to ensure government officials dont conduct public business in secrecy, except in certain circumstances that are spelled out by the law.

Without open access to government records, journalists ability to gather information is constrained, and reporters are forced to rely on the good graces of interested officials, according to the brief.

The brief was filed in support of an appeal of a February ruling by Superior Court Judge Robert Mello.

Mello found that the Vermont Public Records Act does not allow for the public scrutiny of the private emails of state officials even if those officials are conducting government business on personal accounts.

Vermont Attorney General William Sorrell speaks Thursday about alleged fraud in a string of development projects in the Northeast Kingdom funded with immigrant investors money. Looking on is Gov. Peter Shumlin. Photo by Erin Mansfield/VTDigger

The case was brought by Brady Toensing, vice chair of the Vermont Republican Party, who sued for records from the private email account of former Vermont Attorney General Bill Sorrell and nine employees in his office.

Toensings request is part of a multi-year battle to obtain records related to Sorrells communications with lobbyists and others.

Mello wrote in his ruling that, while the definition of a public record in statute is undoubtedly broad its scope does not extend so far as to mandate the search of state officials or employees private email or text messaging accounts upon request.

In an amicus brief filed Friday, attorney Timothy Cornell, of Cornell Dolan, P.C., representing the Vermont Journalism Trust, argued that the decision will create a huge loophole that enables public officials to conceal public records simply by communicating on a private email server.

This will cripple journalists ability to gather information and hold the government accountable, Cornell continued. If a document is produced in the course of agency business, it is a public record, regardless of how it is created, how it is communicated, or where it is stored.

The amicus brief goes on to say that the interpretation of the Public Records Act made by the Superior Court does great violence to the overall aim of the law and avoids the real question: Was the document under consideration produced or acquired in the course of agency business? Absent that analysis, a state official can now put a record entirely out of the publics reach simply by using a private third party email channel or text message.

Mellos ruling acknowledges this possibility but suggests it is up to the Legislature to remedy the situation.

To be sure, the idea that state officials and employees can avoid valid public records requests merely by conducting work-related communications on private e-mail and text messaging accounts is a serious and, frankly, disturbing concern, Mello writes.

Through its decision today the court does not seek to diminish that concern, but only to point out that it is a matter for the Legislature, not the courts, to decide, Mello says.

The Vermont Journalism Trust argues that the courts ruling is based on a flawed interpretation of the public records statute.

The Attorney Generals office has said it does not believe state employees should be using private accounts for public business, but has argued that Toensings request violates the privacy rights of state employees.

Judge Mello concurred.

New Vermont Attorney General TJ Donovan has said requesters should provide evidence showing that public records exist on a state employees private accounts before they can be searched.

The amicus brief argues that there is no exemption in the Public Records Act related to privacy concerns.

Toensing says Donovans interpretation would create an incentive for officials to use private accounts to avoid scrutiny by placing an evidentiary burden on those requesting public records.

While the case is pending, Secretary of State Jim Condos has said his office will continue to advise state agencies and departments that public business conducted on private accounts is subject to open records requests. Condos has said the Vermont Attorney Generals arguments are alarming.

The Supreme Court of Vermont recently granted Toensings motion for an expedited hearing in the case, and arguments are scheduled to be heard on June 7.

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VTDigger, newspapers and First Amendment group back appeal of private email ruling - vtdigger.org

The Bill of Rights surely ranks as one of the most difficult documents for us, as Americans, to contend with.

Theres enough in that list of 10 rights to make each of us a little uncomfortable, depending on your political persuasion.

Me? I get hung up on the Second Amendment. I dislike guns and I have seen how much damage they can unleash on families and communities. Just ask the parents at Sandy Hook.

But its there and like it or not we, as a community, have to follow the law as interpreted by the U.S. Supreme Court no matter how wrong-headed we think the opinion is. If I respect the Constitution, I respect the rule of law.

Then theres the Fourth Amendment protection against unlawful searches of your property and person. It provides great protection for me and my family if the police come pounding on my door and want to search my house without a warrant.

But it also means that even if my neighbor is the nastiest drug dealer in the city, the police cannot crash through their door without cause or a warrant. And if the police dont play by the rules? The evidence might get tossed out of court and that nasty drug dealer goes free.

Then theres the Fifth Amendment right against self-incrimination, which led to the high court establishing the Miranda warning. You hear that in every TV cop show and again, if the police dont read defendants their rights at the time of arrest, a criminals statement just might get thrown out of court, even if it means a guilty person goes free.

Uncomfortable. But the law.

Perhaps the most vexing of all the amendments in the Bill of Rights is the first one you know, the one about free speech, a free press, freedom to worship or not, and the right to assemble.

I personally hope to never have to listen to the likes of white supremacist Richard Spencer talking about making white privilege great again as he did recently at Auburn University in Alabama. But as long as he wasnt inciting violence yes, there are restrictions that can be placed on speech he had a right to speak.

It should have been the same with Ann Coulter in Berkeley, Calif., where her speech was stopped because of a threat of violence. Whether you agree with her is beside the point. She and her followers have a right to free speech just as those who disagree with her have a right to protest peacefully.

That pesky First Amendment.

Indianas legislators showed this past legislative session that while they may love First Amendment protections for themselves, when it comes to high school journalists not so much. After pressure from principals, superintendents and the Department of Education, they refused to extend First Amendment protections to high school journalists and their advisers.

Order and control trumped the First Amendment.

Whats most disheartening about the failure of this piece of legislation is the way it undermines a real opportunity for students to learn from first-hand experience how the Constitution works.

What better civics education is there than to learn about our constitutionally protected freedoms than by living them?

Will there be mistakes? Yes, of course. Thats the price of a free press. And just as there are limits on speech there are limits on the press you deliberately print falsehoods and you can get sued.

Should that fear of students running amuck with their pens and notebooks override the chance to let them live the values we claim to extol in the Constitution? No, it shouldnt.

Some of our lawmakers would be much more comfortable allowing guns in school for protection, of course than would want a free and open student press.

Yes, the First Amendment is pesky and hard. And just because something is hard doesnt mean we quash it. Thats not how our democracy works.

Janet Williams is editor of TheStatehouseFile.com, a news website powered by Franklin College journalism students. She can be reached at jwilliams4@franklincollege.edu.

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WILLIAMS: Living the First Amendment is hard work | Opinion ... - Evening News and Tribune

Forbes

Department Of Labor's Fiduciary Rule Is Vulnerable On First Amendment Grounds Forbes Promulgated in April 2016, the Department of Labor's (DOL) highly controversial Fiduciary Rule drastically expands the universe of retirement investment advisors and employees who are deemed to be fiduciaries under federal law. Abandoning 40 years of ... Fiduciary Rule Violates First Amendment, Law Firm Argues ...Bloomberg BNA Financial Advisor IQ - Fiduciary Rule Slammed as First Amendment ...Financial Advisor IQ (registration) all 13 news articles »

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Department Of Labor's Fiduciary Rule Is Vulnerable On First Amendment Grounds - Forbes