Archive for the ‘First Amendment’ Category

What our First Amendment freedoms are for – VVdailypress.com – VVdailypress.com

By Richard ReebContributed Content

Congress shall make no law . . . 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.

Surely, the freedom guarantees of the First Amendment to the United States Constitution are a timely topic given the lengths to which boorish behavior is being taken by some, while claiming legal protection. Could angry and unreasoning mobs really be what the Founders had in mind when they penned those immortal words?

The key word in the First Amendment is peaceably. As the Constitution establishes a government for the United States of America, it places all discussion within that framework. That is, public oral, written or electronic communications must serve the purposes and follow the procedures laid down by our supreme law and cannot justifiably be in conflict with them.

Put another way, public discussion is justified so long as it is about how, not whether, to achieve our goals as a nation. Speech or publication that aims to undermine or overthrow our form of government is rightly denominated as unconstitutional and certainly seditious.

Our ancestors revolted against a despotic government, engaging in illegal and violent means, including prolonged warfare, to end British imperial authority in the 13 American colonies. But the sequel was the establishment of republican governments in all of them and, ultimately an effective federal government.

The American Revolution was legitimate only to the extent it brought self-government to the North American continent, but not to institutionalize revolution. To forestall that possibility, frequent elections of the peoples representatives were adopted to secure the consent of the governed.

The most severe test of our constitutional framework came in 1860 when seven, ultimately 11, Southern states attempted to secede from the federal union. When rebel forces fired on Fort Sumpter in 1861, the situation changed from one of extreme agitation to full-scale war. Fortunately, that rebellion was crushed. But unless the nation learns the appropriate lessons from the Civil War, we will not have benefited.

Before the conflict began, mostly Southern politicians were not only declaring a right to block the enforcement of federal law and even the Constitution, but asserting that the Declaration of Independence was based on a self-evident lie. In their defense of chattel slavery, they struck at the central idea of the American Republic that held that all human beings are equally endowed by God with the rights to life, liberty and the pursuit of happiness. They even said that such a proposition was unscientific, arguing that the emerging idea of the survival of the fittest applied not just to species but to the races of mankind as well.

Slaverys apologists argued that Caucasians had established their superiority and consequent right to rule over inferior races. Accordingly, the Confederate Constitution distinguished itself from the U.S. Constitution by inserting the word slave without apology and avoided the latters more ambiguous word person.

A comprehensive account of our nations greatest crisis is possible only if we recall that open rebellion was preceded by seditious and even heretical speech. If one denies, as Confederates did, the truth of the proposition that all men are created equal, it is just a matter of time and opportunity before our form of government is at risk.

It is striking that the angry left in America, while professing dedication to equality, denies that our ancestors or their descendants shared that dedication. The claim is that the very existence of slavery proved their hypocrisy, if not their evil intentions for persons of African descent.

The steady progress of justice that ended both slavery and compulsory racial segregation gives the lie to that claim. Of course, if the left is wrong in its diagnosis, America deserves not only the benefit of the doubt but our peoples full dedication. Mimicking their Confederate mentors, todays progressive left is arguing that America is based on a lie. Because its minions believe that lie, they feel free to reject any and all authority that stands in their way.

It never made sense to hold that those who speak or write about our Constitution with contempt are entitled to the full protection secured by the First Amendment. The germ of rebellion against it lies with the heresy that acts of the freely chosen representatives of the people can be defied at will.

We should certainly hear the arguments of the Republics critics if we are to know what they are about, but we are not obliged to be shouted down, driven from our public (and even private) places or put in fear of our lives. The First Amendment, properly understood, absolutely favors peaceable speech. The alternative is mob rule.

Richard Reeb taught political science, philosophy and journalism at Barstow Community College from 1970 to 2003. He is the author of "Taking Journalism Seriously: 'Objectivity' as a Partisan Cause" (University Press of America, 1999). He can be contacted at rhreeb@verizon.net

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What our First Amendment freedoms are for - VVdailypress.com - VVdailypress.com

Community Voices: Protecting our First Amendment rights – The Bakersfield Californian

For 250 years, the First Amendment has protected religious freedom in the United States. Its vital to protect these rights for every citizen of any religion, both in the majority and the minority, not just because of a bleeding heart philosophy or calls for empathy or compassion, but because of simple, un-partisan self-interest. To not do this, even when we feel most divided or most fearful, puts everyones rights at risk.

Sustaining our rights, we know, does not come without a price. There are inherent dangers tied to living in a free society, and in our dangerous and uncertain world, accommodating rights can sometimes seem almost too burdensome. Its tempting, especially when national security risks grow more prevalent, to hand the government greater control of these rights, including those enshrined in the First Amendment. Its more tempting still if its not your own religion or members of your own religion who are the targets of current suspicions, or whose rights to practice without government interference might be most affected.

But if its easier for the government to limit the practice of one religion, or treat its members as a separate class, or effectively, if not overtly, keep people out of the country based on their practice of that religion, it will be easier for it to do the same to members of any other religion in the future, given the right circumstances or excuses.

As a Catholic, Im well aware that members of my religion have also been the targets of discrimination and fear-mongering and active political campaigning against them. The Know-Nothing Party of the mid-1800s believed Catholics intended to take over the United States and gained power, in part, by campaigning for private sector business to only employ true Americans, not Catholics; the Ku Klux Klan largely based its resurgence in the 1920s on its opposition to Catholic and Jewish immigrants, calling for one hundred percent American as an antidote to what they saw as American decay.

For that reason, Im also aware of the importance that religious freedom rights be lifted above temporary societal conditions and public opinion. Even if the majority calls for government to reduce or these amend rights, the power of the majority cannot be absolute, because what happens if you find yourself in the minority? Or your children find themselves in the minority? Or your childrens children?

Weakening these protections subjects the rights of all people of all religions to the whims of majority rule and government favor, subject to change depending on demographic shifts and who comes into power, as it was in the Europe from which our nations founding ancestors fled. Of course, fear is a powerful motivator for making this trade: possible limits on rights in exchange for a greater feeling of safety.

And there are, at present, very serious conversations to be had about national security. But allowing fear, over reason and calm logic, to govern those conversations endangers both rights and security. In a nation governed by laws, those laws should neither be created by fears nor fuel them, otherwise its citizens are, in effect, governed by fear, leaving them vulnerable to a government or officials in that government to increase or stoke those fears for increased control or leeway over citizens rights.

Religious liberty, a fundamental American right and ideal, requires the highest level of scrutiny and must be handled with caution and nuance. If we want our rights preserved, its our job as citizens to demand this from our leaders in their treatment of all religions, not just our own.

In his farewell address, George Washington urged citizens to guard our nation and all its liberties with jealous anxiety, and reject the first dawning of every attempt to alienate any portion of our country from the rest, or to enfeeble the sacred ties which now link together the various parts.

Dividing the nations citizens and limiting the rights of some weakens us all. A threat to one persons rights is a threat to everyones rights. The break might not be immediate, but still it will linger, like a small crack in a windshield, more vulnerable to any future blow. Its prudent to guard against those cracks.

Alyssa Morones was born and raised in Bakersfield. She holds a degree in political science.

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Community Voices: Protecting our First Amendment rights - The Bakersfield Californian

Judge Gorsuch’s First Amendment jurisprudence – SCOTUSblog (blog)

Apart from the establishment clause, the Supreme Court has for the last decade taken a strong view of the First Amendments protections. Judge Neil Gorsuchs decisions on the U.S. Court of Appeals for the 10th Circuit align with that trend. In many ways, Gorsuchs opinions in this area are similar to those of the late Justice Antonin Scalia with the possible exception that Gorsuch has been more willing to find not only that the First Amendment has been violated, but also that defendants were not entitled to qualified immunity in those cases. It is unclear whether Gorsuch will continue that trend if he is confirmed, because cases in front of the Supreme Court tend to be closer than cases in the courts of appeals, and so qualified immunity is typically easier to get. I focus on cases in which Gorsuch has written a majority opinion, concurrence, or dissent, without regard to whether the decisions in question were precedential, on the theory that Gorsuchs writings will provide the greatest insight into his mindset.

Freedom of speech, the press and assembly

With few exceptions, Gorsuch has been willing to find in favor of First Amendment plaintiffs and against defendants attempting to assert immunity against a First Amendment claim.

In Walton v. Powell, in 2016, Gorsuch wrote a unanimous opinion affirming a district courts decision to allow a government employees Section1983 claim alleging that she was fired for her political affiliation to proceed. The court held that the McDonnell-Douglas burden-shifting framework does not apply to First Amendment retaliation claims, which are governed by a more plaintiff-friendly standard. It then applied that standard to uphold the employees claim, and deny the defendants qualified immunity defense.

In 2007, in Casey v. West Las Vegas Independent School District, Gorsuch wrote an opinion finding that a school district superintendents statements to her own school board were not protected citizen speech, but her statements to the state attorney general were. The court further held that qualified immunity was not available because it had been long established that when public employees speak to outside authorities on matters of public concern for reasons that are not job-related, their speech is protected.

In Rounds v. Clements, in 2012, Gorsuch wrote an opinion holding that a state prisoners First Amendment retaliation claim, which sought prospective relief, did not run afoul of the Eleventh Amendment. The prisoner, an electrician by trade, alleged that he suffered retaliation because he had reported to prison superiors that other prison officials were asking him to perform shoddy electrical work. The court held that the prisoner stated a claim, and that the claim fell under the Ex Parte Young exception to Eleventh Amendment immunity insofar as the electrician sought to be restored to his former status as a privileged prisoner.

In a notable 2016 dissent in A.M. v. Holmes, Gorsuch argued that a New Mexico statute prohibiting disruption in school did not apply to a seventh-grader who had pretended to burp in class. Distinguishing classroom antics from actions that substantially interfere with the actual functioning of the school, Gorsuch argued that the statute had been interpreted more narrowly than its text suggests, and disagreed with the majoritys decision to read it more broadly. The dissent did not rely on the First Amendment, but it suggests that Gorsuch may be willing to protect a substantial amount of on-campus speech.

Although these decisions all strongly suggest that Gorsuch will happily allow free speech claims to move forward, there are some open questions about how protective he will be of speech at the margins.

In Mink v. Knox, in 2010, Gorsuch wrote a concurrence in a case allowing a Section1983 claim against a deputy district attorney who had pursued a criminal libel charge against the publisher of an Internet-based journal. The court held, and Gorsuch agreed, that because the journal was engaged in parody, the speech was protected even as it related to matters of private concern. Gorsuch wrote separately to argue that the result was compelled by circuit precedent, chiding his colleagues for going further to defend that precedent. Although he did not tip his hand, the separate opinion suggests that Gorsuch may be more willing than some of his colleagues to permit libel claims against a parody.

In 2016, in Alvarez v. Grosso, Judge Gorsuch wrote an unpublished opinion holding that civilians had no right to attend military court-martial proceedings. The court held that commanders have wide discretion to bar civilians from the base, and that civilians have no constitutionally protected right to speak on military bases or to observe court martial trials.

The First Amendment and campaign finance

In Riddle v. Hickenlooper, in 2014, the 10th Circuit struck down a Colorado statute that effectively limited individual campaign contributions to write-in candidates to $200 while permitting donors to give up to $400 to candidates who ran in primaries. The statute had been challenged principally on equal protection grounds, but the First Amendment status of campaign contributions was also front and center. In a concurring opinion, Judge Gorsuch argued that the act of contributing to political campaigns implicates a basic constitutional freedom, one lying at the foundation of a free society and enjoying a significant relationship to the right to speak and associateboth expressly protected First Amendment activities. That language may suggest that Gorsuch is broadly sympathetic to the idea that money in politics is just another form of expression, and would be skeptical of campaign finance limits. On the other hand, Gorsuch cautioned against adopting a level of scrutiny for campaign contribution cases, noting that it wasnt necessary to do so in order to resolve the case, and that the Supreme Courts decisions had been unclear about what level of scrutiny applies.

The petitions clause

In 2007, in Van Deelen v. Johnson, Gorsuch wrote an opinion reversing a grant of summary judgment to county officials who had allegedly retaliated against a taxpayer who had filed appeals and lawsuits to challenge property tax assessments. Defending the right to petition the government for redress of grievances, Gorsuch wrote that [w]hen public officials feel free to wield the powers of their office as weapons against those who question their decisions, they do damage not merely to the citizen in their sights but also to the First Amendment liberties and the promise of equal treatment essential to the continuity of our democratic enterprise. Good luck, President Trump.

The religion clauses

In American Atheists, Inc. v. Davenport, in 2010, a 10th Circuit panel had held that 13 12-foot crosses erected on public land to memorialize deceased Utah highway patrol officers ran afoul of the establishment clause because a reasonable observer would regard those memorials as endorsing Christianity. Rehearing en banc was denied, and Gorsuch dissented from that denial. In the dissent, Gorsuch argued both that the 10th Circuit had strayed from the Supreme Courts precedents, which had not recently applied the reasonable observer test to public displays, and that the 10th Circuit had applied the test in an expansive way by treating the reasonable observer as somebody who is biased, replete with foibles, and prone to mistake. The dissent sends a very clear signal that Gorsuch is on board with the more conservative understanding of the establishment clause embraced by the late Justice Antonin Scalia.

Gorsuchs views on free exercise issues are less clear because, to the best of my knowledge, he has not written an opinion in a case in which a constitutional free exercise challenge was brought unaccompanied by a statutory challenge under the Religious Freedom Restoration Act (RFRA) or Religious Land Use and Institutionalized Persons Act (RLUIPA). In 2013, he wrote a concurring opinion in Hobby Lobby Stores, Inc. v. Sebelius, arguing that the individual owners of the Hobby Lobby stores (the Green family) were entitled to relief under RFRA. Gorsuch explained that because the Greens are the human actors who must compel the corporations to comply with the [Affordable Care Acts contraception] mandate, their own personal religious beliefs were burdened by the mandate. In the process, Gorsuch argued:

No doubt, the Greens religious convictions are contestable. Some may even find the Greens beliefs offensive. But no one disputes that they are sincerely held religious beliefs. This isnt the case, say, of a wily businessman seeking to use an insincere claim of faith as cover to avoid a financially burdensome regulation. See United States v. Quaintance, 608 F.3d 717 (10th Cir.2010) (an example of just that). And to know this much is to know the terms of the Religious Freedom Restoration Act apply. The Act doesnt just apply to protect popular religious beliefs: it does perhaps its most important work in protecting unpopular religious beliefs, vindicating this nations long-held aspiration to serve as a refuge of religious tolerance.

Although this case arose under RFRA, and not the First Amendment, Gorsuch nevertheless signaled that he might take a very strong view of free exercise principles, consistent with the Supreme Court majority that affirmed the 10th Circuits decision in Hobby Lobby.

On the other hand, in 2014, in Ali v. Wingert, Judge Gorsuch wrote an opinion denying relief to a prison inmate who wanted to use only his newly adopted Muslim name on mail envelopes, instead of using both his Muslim name and his former name. The claims were brought under RLUIPA and also the First Amendments free exercise clause. Rejecting the RLUIPA claim, Judge Gorsuch acknowledged that if a prisoners sincerely held religious beliefs forbade any mention of a former name, then there might be a substantial burden on the inmate, but found that the facts in the complaint did not make such an allegation. Federal courts certainly are not arbiters of religious scripture or dogma, but to establish a RLUIPA claim they do require from the claimant some well-pleaded facts suggesting a substantial burden on a sincere religious exercise. The First Amendment free exercise claim failed for the same reason.

Also, in Abdulhaseeb v. Calbone, in 2010, Gorsuch wrote a concurring opinion in a RLUIPA case where the inmate alleged that a halal diet was not available. Gorsuch acknowledged that the law does not permit an institution to force an inmate to choose between violating his religious beliefs and starving to death. But he made it clear that he would not go further to hold that RLUIPA prohibits the prison from taking action that requires a prisoner to occasionally miss a normal meal because he refuses to eat the food, or that the statute requires any other accommodation for religious diet other than accommodating major religious holidays and the need to eat enough to live.

Posted in Nomination of Neil Gorsuch to the Supreme Court, A close look at Judge Neil Gorsuchs jurisprudence, Featured

Recommended Citation: Tejinder Singh, Judge Gorsuchs First Amendment jurisprudence, SCOTUSblog (Mar. 7, 2017, 11:16 AM), http://www.scotusblog.com/2017/03/judge-gorsuchs-first-amendment-jurisprudence/

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Judge Gorsuch's First Amendment jurisprudence - SCOTUSblog (blog)

What our First Amendment freedoms are for – Desert Dispatch

By Richard Reeb

Congress shall make no law . . . 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.

Surely, the freedom guarantees of the First Amendment to the United States Constitution are a timely topic given the lengths to which boorish behavior is being taken by some, while claiming legal protection. Could angry and unreasoning mobs really be what the Founders had in mind when they penned those immortal words?

The key word in the First Amendment is peaceably. As the Constitution establishes a government for the United States of America, it places all discussion within that framework. That is, public oral, written or electronic communications must serve the purposes and follow the procedures laid down by our supreme law and cannot justifiably be in conflict with them.

Put another way, public discussion is justified so long as it is about how, not whether, to achieve our goals as a nation. Speech or publication that aims to undermine or overthrow our form of government is rightly denominated as unconstitutional and certainly seditious.

Our ancestors revolted against a despotic government, engaging in illegal and violent means, including prolonged warfare, to end British imperial authority in the 13 American colonies. But the sequel was the establishment of republican governments in all of them and, ultimately an effective federal government.

The American Revolution was legitimate only to the extent it brought self-government to the North American continent, but not to institutionalize revolution. To forestall that possibility, frequent elections of the peoples representatives were adopted to secure the consent of the governed.

The most severe test of our constitutional framework came in 1860 when seven, ultimately 11, Southern states attempted to secede from the federal union. When rebel forces fired on Fort Sumpter in 1861, the situation changed from one of extreme agitation to full-scale war. Fortunately, that rebellion was crushed. But unless the nation learns the appropriate lessons from the Civil War, we will not have benefited.

Before the conflict began, mostly Southern politicians were not only declaring a right to block the enforcement of federal law and even the Constitution, but asserting that the Declaration of Independence was based on a self-evident lie. In their defense of chattel slavery, they struck at the central idea of the American Republic that held that all human beings are equally endowed by God with the rights to life, liberty and the pursuit of happiness. They even said that such a proposition was unscientific, arguing that the emerging idea of the survival of the fittest applied not just to species but to the races of mankind as well.

Slaverys apologists argued that Caucasians had established their superiority and consequent right to rule over inferior races. Accordingly, the Confederate Constitution distinguished itself from the U.S. Constitution by inserting the word slave without apology and avoided the latters more ambiguous word person.

A comprehensive account of our nations greatest crisis is possible only if we recall that open rebellion was preceded by seditious and even heretical speech. If one denies, as Confederates did, the truth of the proposition that all men are created equal, it is just a matter of time and opportunity before our form of government is at risk.

It is striking that the angry left in America, while professing dedication to equality, denies that our ancestors or their descendants shared that dedication. The claim is that the very existence of slavery proved their hypocrisy, if not their evil intentions for persons of African descent.

The steady progress of justice that ended both slavery and compulsory racial segregation gives the lie to that claim. Of course, if the left is wrong in its diagnosis, America deserves not only the benefit of the doubt but our peoples full dedication. Mimicking their Confederate mentors, todays progressive left is arguing that America is based on a lie. Because its minions believe that lie, they feel free to reject any and all authority that stands in their way.

It never made sense to hold that those who speak or write about our Constitution with contempt are entitled to the full protection secured by the First Amendment. The germ of rebellion against it lies with the heresy that acts of the freely chosen representatives of the people can be defied at will.

We should certainly hear the arguments of the Republics critics if we are to know what they are about, but we are not obliged to be shouted down, driven from our public (and even private) places or put in fear of our lives. The First Amendment, properly understood, absolutely favors peaceable speech. The alternative is mob rule.

Richard Reeb taught political science, philosophy and journalism at Barstow Community College from 1970 to 2003. He is the author of "Taking Journalism Seriously: 'Objectivity' as a Partisan Cause" (University Press of America, 1999). He can be contacted at rhreeb@verizon.net

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What our First Amendment freedoms are for - Desert Dispatch

Amazon gives up fight for Alexa’s First Amendment rights after defendant hands over data – The Verge

Amazon has abandoned its legal battle to protect its Alexa assistant with First Amendment rights for now at least. The company filed a motion against a police search warrant in an Arkansas murder case earlier this month, but has now dropped the case after the defendant agreed to hand over the data contained on his Echo speaker to police.

In documents filed last Monday, defendant James Andrew Bates said that he was willing to allow law enforcement officials to review information contained on his Amazon Echo speaker, before the company handed the data over on Friday. Bates has pleaded not guilty to the murder of Victor Collins, who was found dead in Bates hot tub in November 2015.

Amazon said its search results were constitutionally protected opinion

Police had issued a warrant to seize subscriber and account information from Bates Echo, as well as all communication and transaction history from the device. Amazon provided the former, but argued against providing communication data, claiming that voice interactions with Alexa were protected by the First Amendment. That includes Alexas replies to a user Amazon claims that ranked search results are constitutionally protected opinion. Precedent for that argument was set by a 2014 case in which Google search results were classified as free speech by a San Francisco court, after a news website complained that its own pages were too far down the companys listings.

Amazon argued that police didnt have enough of a compelling argument in Bates case for it to hand over the data, with officials unable to prove that any potential information would not be available anywhere else. It remains to be seen whether Bates Echo does indeed have any pertinent information a hearing is scheduled for Wednesday this week. The defendants acquiescence also means that we dont yet have a definitive answer on whether Alexa is indeed protected by the First Amendment.

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Amazon gives up fight for Alexa's First Amendment rights after defendant hands over data - The Verge