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Tennessee lawmakers completed their annual session April 21, approving Gov. Bill Lee's $56.2 billion budget, which includes a$3.3 billion road planthat allows the state to use private companies to build, operate and run toll lanes in urban areas, branded as choice lanes by the governor because people can choose not to use them.

Amid protests throughout much of the session centering on gun control and transgender rights, the Republican supermajority was able to pass legislation shielding gunmakers from liability, criminalizing drag shows with minors present and banning transgender medical procedures for Tennessee children, among other priorities.

Here's a rundown on some of the major actions state lawmakers took this year, including votes cast by Southeast Tennessee lawmakers:

Number:Senate Bill 1

Topic: Transgender medical procedure ban for children

Transgender health care bill bars most transgender medical procedures for children and teens under age 18 in Tennessee. Prevents access to transition treatments such as surgery, puberty blockers and hormone therapies, in addition to surgeries for gender dysphoria, a term used to describe anguish and other symptoms as a result of the disparity between someone's assigned sex and their gender identity.

Votes:Senate: 26-6. House: 77-16.

Status:Gov. Bill Lee signed into law March 3. The ACLU, Tennessee ACLU, Lambda Legal, and Akin Gump Strauss Hauer & Feld LLP filed a federal lawsuit April 20, challenging the law. Litigation pending. On Wednesday, the U.S. Justice Department filed suit in U.S. District Court in Nashville challenging the new law, which is set to take effect July 1.

How Southeast Tennessee lawmakers voted:

House Ayes: Reps. Yusuf Hakeem, D-Chattanooga; Patsy Hazlewood, R-Signal Mountain; Esther Helton-Haynes, R-East Ridge; Greg Martin, R-Hixson; Greg Vital, R-Harrison; Dan Howell, R-Cleveland; Kevin Raper, R-Cleveland, Ron Travis, R-Dayton.

House Nays: None

Senate Ayes: Sens. Todd Gardenhire, R-Chattanooga; Bo Watson, R-Hixson; Adam Lowe, R-Calhoun, Janice Bowling, R-Tullahoma.

Senate Nays:None

The debate: House Majority Leader William Lamberth, R-Portland: "These children do not need these medical procedures to be able to flourish as adults. They need mental health treatment. They need love and support, and many of them need to be able to grow up to become the individuals that they were intended to be."

Rep. Bo Mitchell, D-Nashville: "It has nothing to do with protecting children from unnecessary medical procedures. Some children can get their breast enhancements, their nose jobs, that's OK, but these children can't have any medical procedures?"

Number:Senate Bill 12

Topic:School vouchers for Hamilton County

Voucher bill sponsored by Sen. Todd Gardenhire, R-Chattanooga, brings Hamilton County into the state's Education Savings Account program and will provide taxpayer-funded vouchers worth about $8,100 a year per student that can be used to send a student to a private school willing to accept the voucher.

Votes:Senate: 19-6, four members present and not voting on the bill. House: 57-27, five representatives present and not voting on the bill.

Status:The bill has been transmitted to Lee.

How Southeast Tennessee lawmakers voted:

House Ayes: Hazlewood, Helton-Haynes, Martin, Vital, Howell

House Nays: Hakeem

House present and not voting:Raper

Senate Ayes: Gardenhire, Watson, Bowling, Lowe

The debate:Gardenhire: "I want to give the parents and the students the opportunity to have a choice and not be trapped in failing schools. Whether you like the ESA bill or not, it's here and passed its legal challenges."

House Minority Leader Karen Camper, D-Memphis: "Here again, we're in a situation where we're going to be taking even more funds from our public systems. We said this was going to happen with the first legislation they agreed there'll be only X number of students, X number of areas. And we knew they had plans to expand this ESA program."

Number:Senate Bill 3

Topic:Drag shows, minors

Creates an offense for a person who engages in an "adult cabaret performance" on public property or in a location where the adult cabaret performance could be viewed by a person who is not an adult. Applies to adult-oriented performances that are "harmful to minors" and references Tennessee Code Annotated 39-17-901. The code section contains a provision stating an average person applying contemporary community standards would find the performance appeals predominantly to the "prurient, shameful or morbid interests of minors." Applies to topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators or similar entertainers.

Votes:Senate: 26-6. House: 74-19.

Status:First-in-the-nation law signed by Lee on March 2. Federal judge temporarily blocked law after Memphis-based Friends of George's, an LGBTQ+ theater group, sued saying the law violates the First Amendment. Lawsuit still pending.

How Southeast Tennessee lawmakers voted:

House Ayes: Hazlewood, Helton-Haynes, Martin, Vital, Howell, Raper, Travis

House Nays: Hakeem

Senate Ayes: Gardenhire, Watson, Lowe and Bowling.

The debate:Senate Majority Leader Jack Johnson, R-Franklin: "I would encourage you to direct (constituents) to the obscenity statute."

House Rep. Torrey Harris, D-Memphis, the Tennessee legislature's only openly gay member: "We have three other, nonopenly LGBTQ Republican colleagues of mine who can't really open up their mouth and speak freely about their situation because they're hiding as well. And so I say that because there's young people who are uncomfortable with who they are and can't speak on behalf of themselves because of people like us in this legislature."

Number:Senate Bill 446

Topic:Pronouns

Specifies that a teacher or other employee of a public school or LEA is not required to refer to a student using the student's preferred pronoun if the pronoun is not consistent with the student's biological sex.

Votes:House: 72-22 with one person present but not voting on the bill. Senate: 25-7 with one person present but not voting on the bill.

Status:Has yet to be signed by House and Senate speakers

How Southeast Tennessee lawmakers voted:

House Ayes: Hazlewood, Helton-Haynes, Martin, Vital, Howell, Raper, Travis

House Nays: Hakeem

Senate Ayes: Gardenhire, Watson, Bowling, Lowe

The debate:Sen. Paul Rose, R-Covington: "Senate Bill 446 will help protect the First Amendment right of teachers should they choose to establish a pronoun policy in their classroom. This bill will protect them from any adverse disciplinary action."

Senate Minority Leader Raumesh Akbari, D-Memphis: "I think ... we give teachers a license to essentially bully a student and someone who identifies in a certain way. It's about respect and decorum."

Number:Senate Bill 1440

Topic:Defining term "sex" for birth certificates, driver's licenses

Defines the term "sex" for use throughout Tennessee code, unless the context otherwise requires, as a person's "immutable biological sex" as determined by anatomy and genetics existing at the time of birth. Requires a person's sex be listed on the original birth certificate and driver's license. A fiscal note says the law could jeopardize $1.29 billion in federal education funds coming to the state and another $750 million in grants to the state Department of Health and lead to civil litigation.

Status:Has yet to be signed by House and Senate speakers

Votes:House: 71-21. Senate: 27-6

How Southeast Tennessee lawmakers voted:

House Ayes: Hazlewood, Helton-Haynes, Martin, Vital, Howell, Raper, Travis

Nays: Hakeem

Senate Ayes: Gardenhire, Watson, Lowe, Bowling

The debate:Rep. Rusty Grills, R-Newbern: "God created man, He created woman. He put them in this world to procreate and to read and replenish the world. And when we continue to spit in the face of God as a nation, we're going in the wrong direction."

Rep. Justin Pearson, D-Memphis: "You are saying the government is the decider of someone's sex and the 'immutability' that you mention. Not only is it a bad piece of legislation, the message that's being signaled to people particularly in our LGBTQIA community that you were signaling is really strong. And it's harmful and it's hurtful."

Number:Senate Bill 269

Topic:Juneteenth

Designates Juneteenth, the date on June 19, 1865, in which a Union general issued an order freeing remaining enslaved people in Texas and ending slavery in America, an official Tennessee holiday. Provides time off for state employees. Juneteenth is already a state Day of Special Observance. A fiscal note estimates an annual $691,890 cost for state employees whose jobs require they work that day.

Votes:Senate: 24-4. House: 61-18 with 10 present and not voting on bill.

Status:Lee supported the bill, which has yet to make it to his desk.

How Southeast Tennessee lawmakers voted:

House Ayes: Hakeem, Hazlewood, Raper

House Nays: None

House present and not voting: Helton-Haynes, Vital

House not listed as voting: Martin, Howell, Travis

Area Senate Ayes: Watson, Lowe

Senate Nays: Bowling

Senate present and not voting: Gardenhire

The debate: Senate Minority Leader Raumesh Akbari, D-Memphis: "It marks the emancipation of enslaved people in America. ... This is an important celebration for not just African-Americans but for folks all across the state of Tennessee."

Sen. Joey Hensley, R-Hohenwald, in Senate Finance Committee: "I asked several people in my district if they knew what Juneteenth was, and very few did. I don't think we need to be making a holiday for something that happened in Texas. This is going to cost the state $700,000. It's a holiday that most people don't know what it is."

Number: House Bill 1189

Topic: Firearms lawsuit protections for gun manufacturers

Provides special protections for firearms manufacturers against lawsuits. The House passed the bill prior to the March 27 deadly shooting of three children and three adults at The Covenant School in Nashville. Senators gave final approval April 18, shortly before another planned mass protest the same day by students, parents and others over the shooting and gun violence.

Votes: House: 71-24. Senate: 19-9

Status:The bill as of Thursday was awaiting the signature of House Speaker Cameron Sexton, R-Crossville, before going to Lt. Gov. Randy McNally, the Republican Senate speaker. It would then go to Lee for his consideration.

How Southeast Tennessee lawmakers voted:

House Ayes: Hazlewood, Helton-Haynes, Martin, Vital, Howell, Raper, Travis

House Nays: Hakeem

Senate Ayes: Gardenhire, Watson, Bowling, Lowe

The debate:Sen. Joey Hensley, R-Hohenwald: "This is just to try to help businesses in this state that have chosen to come here, to give them a little civil liability" protection.

Sen. Jeff Yarbro, D-Nashville: "There are people that we should be going out of our way to protect this week. And we've been receiving emails and calls, people are holding up signs, telling us to go out of our way to help those people. Not one of those signs says to protect the gun manufacturers."

Number:Senate Bill 1012

Topic: Prohibits mandatory 'implicit bias' training for educators

The bill, sponsored by Gardenhire, prohibits a local education agency, public charter school, public institution of higher education, State Board of Education, and Department of Education from requiring implicit bias training for employees. Defines "implicit bias training" as training or other educational programs designed to expose an individual to biases of which one may not be consciously aware, against a specific group.

Votes:Senate: 24-5. House: 71-22

Status: Awaiting House speaker signature before going to the governor

How Southeast Tennessee lawmakers voted:

House Ayes: Hazlewood, Helton-Haynes, Martin, Vital, Howell, Raper, Travis

House Nays: Hakeem

Status:Has not reached House speaker as of Thursday

The debate:Gardenhire: "It doesn't matter whether you agree or disagree with this type of training or searching your soul or accusing you of being something that you are or not, what this bill says is if you fundamentally disagree with what you're being forced to take or agree to, you don't have to. And what's more, they can't hold it against you if you don't want to take it or you fail to take it."

Akbari: "Those types of thoughts affect our judgment," Akbari said, using as an example that if she sees someone from a rural area, "I automatically assume they're uneducated, or I see someone from an urban area and I automatically assume they're a criminal, and I make my decisions based on those beliefs."

Number:House Bill 1545

Topic:State's FY 2023-204 $56.2 billion budget

Tennessee lawmakers approved the annual spending plan that injects a record $3.3 billion into national highway projects and premises as well as other large investments, including nearly $1 billion for Tennessee Colleges of Applied Technology and $223 million to enhance security at public and private schools.

Read more from the original source:
What did the Tennessee General Assembly do this year? - Chattanooga Times Free Press

CASE PREVIEW ByAmy Howe on Apr 17, 2023 at 10:12 pm

The court will hear the First Amendment case Counterman v. Colorado on Wednesday. (R Boed via Flickr)

There is no dispute that the Facebook messages Billy Raymond Counterman sent to local Colorado musician Coles Whalen made her feel afraid. For years, Counterman sent increasingly menacing messages in which he suggested that he had seen Whalen who is identified only by her initials in court documents, but who has discussed the case on her website while driving and made comments such as Die and Fuck off permanently. Whalen told a family member that she was extremely scared after receiving these messages. She canceled appearances and her mental health declined. In 2017, Counterman was convicted and sentenced to four-and-a-half years in prison for stalking.

On Wednesday the Supreme Court will take up Countermans appeal to consider how courts should determine what constitutes true threats, which are statements not protected by the First Amendment. Should they use an objective test, that looks at whether a reasonable person would regard the statement as a threat of violence? Or should they instead use a subjective test, that requires prosecutors to show that the speaker intended to make a threat?

Both sides in Wednesdays case agree that the issue is an important one. Counterman stresses that the notion that a person can spend years in prison for a speech crime committed by accident is chilling. But the state of Colorado, which prosecuted Counterman, counters that Countermans messages frightened their recipient and disrupted her life. This is precisely why threats of violence are not protected by the First Amendment, the state says: to shield individuals from the fear of violence, which follows from the threats no matter what the person making the threat intends.

Colorados intermediate appeals court upheld Countermans conviction. It ruled that to determine whether Countermans statements qualified as a true threat, courts should apply an objective test that considers whether a reasonable person would regard the statement as a threat of violence. Because Countermans statements were true threats, the appeals court concluded, they were not protected by the First Amendment and his conviction for stalking therefore did not violate the Constitution.

Counterman came to the Supreme Court last summer, asking the justices to take up his case which they agreed to do earlier this year.

In his brief in the Supreme Court, Counterman stresses that the First Amendment protects speech from government interference even when others may regard it as offensive. There is a presumption that restrictions on the content of speech are invalid, he says. If the government wants to regulate speech, it must show that there is a long tradition of doing so. But there is not such tradition of holding someone criminally liable for speech that he did not intend as a threat, he argues.

The test for determining whether speech is a true threat that is not protected by the First Amendment must consider the speakers intent, Counterman contends. A purely objective test, like the one used by the Colorado court, runs the risk of criminalizing inevitable misunderstandings and good-faith miscommunications particularly when so much speech occurs on the internet, where the evidence of criminal conduct consists of bare words on a screen.

There is also a real risk that the state courts objective test will restrict even legal speech as well, Counterman continues. Not wanting to risk criminal liability, speakers will refrain from any speech that, although legal, might nonetheless be construed as threatening in nature. This is particularly true, Counterman suggests, for members of unpopular political groups or ethnic or religious minorities, whose beliefs might differ from the police, prosecutors, and jurors who enforce the reasonable person standard and who may worry that restrictions will be selectively enforced.

Under a subjective test, Counterman concludes, his conviction cannot stand. His speech was constitutionally protected because Counterman, who suffers from mental illness, did not intend to threaten the musician. The trial judge appeared to recognize as much, Counterman notes, calling Countermans statements delusional and saying he thought that most people would give Counterman the benefit of the doubt that he is doing it through a lack of understanding, as [o]pposed to a malicious intent. But prosecutors told the jury that they only had to show that a reasonable person would be disturbed by Countermans statements not that he knew that they would cause distress for the woman herself.

Colorado disputes Countermans characterization of the history of government regulation. In early English and U.S. history, threats were punished regardless of the speakers intent, the state contends. That approach continued into the 20th century, the state says, and it is reflected in the Supreme Courts First Amendment cases involving other kinds of speech, such as incitement, defamation and false or misleading commercial speech.

Although the ultimate inquiry is whether an intended or foreseeable recipient would reasonably perceive the statements as a serious expression of intent to commit physical violence, the state continues, the test must also look at the entire context in which the statements are made including the platform on which the statements were communicated and whether the statement was made publicly or privately. This approach, the state reasons, acknowledges that, when viewed in context, words may not always convey the meaning that they would standing alone; it also accounts for the unique challenges posed by communications over the internet.

At the same time, the state adds, because the test does not hinge on the reaction of a statements recipient, it protects political hyperbole, art, other valuable expression, and even poorly chosen words by requiring that the entire context be considered.

Finally, the state emphasizes that any test that requires prosecutors to show that the speaker intended to make a threat does not provide enough protection for the targets of the speech. Even if a speaker does not realize that the target of his statement feels threatened, the state tells the justices, the speech can still have debilitating impact. Moreover, the state adds, the harm from threats can affect not only individuals but also institutions, such as schools and houses of worship sometimes prompting them to close down.

Applying the proper context-driven objective test to this case, the state writes, underscores just how threatening Countermans messages were. Using the First Amendment to immunize harmful, aggressive, and repeated behavior, like Countermans here, would distort the protections our Constitution provides by enabling more harm and less speech.

The question before the court in Countermans case is a familiar one. Nearly a decade ago, the court granted review inElonis v. United States, involving the same issue, but ultimately decided that case on a different ground.

See the original post:
Colorado mans First Amendment challenge will test the scope of protection for threatening speech - SCOTUSblog

In the midst of the demonstrations at the state Capitol, hundreds of protesters packed into the confines of the old building, creating walls of shoulders and walls of sound as they chanted their support for the three Democratic lawmakers facing expulsion that day.

The ceiling rattled with chants and the floor shook with the stomping as the crowd undulating like an oversized snake coiled and hissed with each vote broadcasted on the TV monitors.

The overwhelming turnout on April 6 was just one snapshot of the demonstrations following The Covenant Shooting and subsequent expulsion of two Democratic lawmakers that placed the First Amendment in all its power, complexity and even limitations on full display for the nation to see.

Following the mass shooting at The Covenant School, demonstrations against gun violence sprang up across the state, but most prominently in Nashville. Reps. Justin Jones, D-Nashville, Justin Pearson, D-Memphis and Gloria Johnson, D-Knoxville, led their own protests on the House floor, breaking the chamber's rules to speak in support of stricter gun control measures during a House session on March 30.

The politics of expulsion: How Republicans handed Democrats a major win with historic vote

The pushback on the three Democrats came swiftly: a historic expulsion vote left Jones and Pearson ousted from their seats and Johnson left standing by merely one vote.

Its a great First Amendment argument, said Aftyn Behn, a local activist and demonstrator, wiping rain from her drawn hood as she stood with demonstrators outside the Capitol. We have three democratically elected officials who used their First Amendment rights on the floor, supporting others using their First Amendment rights, and yet theyre being expelled. Its not right.

Although Jones and Pearson have been reinstated via interim appointments, Tennessee Republicans received national criticism for the expulsion, along with mounting questions regarding the First Amendment rights of the lawmakers and whether they were violated by the GOPs retaliation.

Before his expulsion, Pearson sent a letter to his House colleagues, explaining he was using his First Amendment rights to help "elevate the voices in our community who want to see us act to prevent gun violence."

"We must always stand up for what we believe to be right and just, we must say no to more gun violence," he wrote.

Related: A week after expulsion, Justin Pearson of Memphis returns to Tennessee House

Related: Justin Jones returns to state legislature after unanimous Nashville Council appointment

But the First Amendment rights of a lawmaker speaking inside the legislature is more complex, legal experts say.

David Hudson, a Belmont University law professor and First Amendment expert, said a key case to study is a U.S. Supreme Court decision from 1966.

Bond v. Floyd is an extraordinary case that sets strong First Amendment precedent for legislators, even from 57 years ago, Hudson said.

Julian Bonds case holds similarities to todays case of the Tennessee Three, as they've become known. Bond, a young, Black, newly elected representative in the Georgia House of Representatives, was blocked from taking his elected seat from the majority-white body following statements made on a hot political issuein his case, his opposition to the Vietnam War.

The case went all the way to the U.S. Supreme Court, which ruled in Bonds favor and the action against him a violation of his First Amendment rights as well as those of his constituents.

The manifest function of the First Amendment in a representative government requires that legislators be given the widest latitude to express their views on issues of policy, wrote Chief Justice Earl Warren, who issued the courts opinion on the case. The central commitment of the First Amendment is that debate on public issues should be uninhibited, robust, and wide-open. Just as erroneous statements must be protected to give freedom of expression the breathing space it needs to survive, so statements criticizing public policy and the implementation of it must be similarly protected."

Legislators have an obligation to take positions on controversial political questions so that their constituents can be fully informed by them, and be better able to assess their qualifications for office, Warren added. Also so they may be represented in governmental debates by the person they have elected to represent them.

But a key difference between Bonds case and the Tennessee Three is the timing of their statements. Bonds comments were made in a news interview outside the House chambers. Jones and Pearson broke House rules to use a bullhorn to lead the gallery in chants for gun control, resulting in a recess in legislative business.

The facts are different, but the larger principle is you cannot remove someone from a state legislature because of their political viewpoints, Hudson said. The GOP could try to claim that they (removed Jones and Pearson) because of the disruption. And that argument may succeed. But still, you're still doing the same thing. So I do think while Bond v. Floyd is not exactly on point for this case, there is a strong precedent that argues that the Tennessee leaders in the House overstepped their authority. I think that at least symbolically, this was an assault on First Amendment.

Kevin Goldberg, a First Amendment specialist at the Freedom Forum, said the difference between the two cases is vital to deciding if the expulsion is a historic violation of the First Amendment rights of the lawmakers, the GOP enforcing the House rules on decorum and order or an overly harsh punishment.

You hung us out to dry: Leaked audio shows hot tempers inside GOP caucus after expulsion vote

Constitutional rights trump anything else, he said. You can pass all the rules you want but if they attack the First Amendment, the First Amendment wins, even for legislators. But does that mean they can say and do every everything they want, whenever they want? No.

Goldberg said there are many instances where a lawmaker's right to freely speak can be limited, regardless of Bond v. Floyd and especially considering the venue in which they are speaking.

The first limitation would be whether these three are considered public employees, Goldberg said. Because there's a concept called public employee speech that says when you're acting as a public employee, your First Amendment rights are limited because of your association with the government because it might be perceived that you're talking for the government.But Goldberg said that this legal standard determined by the court case Garcetti v. Ceballosin 2006 is unlikely to be used by the state of Tennessee as the reason to limit the legislators speech, considering one of the main arguable exceptions to this rule is the idea of protesting something thats a matter of public concern matters like mass shootings.

Another limitation that Goldberg said could apply to the lawmakers right to speak is rather simple: whether they were engaged in unprotected areas of speech, like inciting violence.

If they engaged in unprotected areas speech, then their rights fall away entirely, Goldberg said. We're talking about incitement to imminent, lawless action. We're talking about fighting words. We're talking about true threats against other members of the legislature. I dont see any argument that can be made that (they did this).

Finally, Goldberg said where the speech took place is also applicable. Whether it is in a non-public or public forums can determine free speech limitations, he said.

The Capitol floor, called the well, is what we would probably call a non-public forum, he said. It's an area owned by the government that has not traditionally been open to free speech for all.

Non-public forums, defined by Perry Education Association v. Perry Local Educators Associationin 1983, are areas that the state may reservefor its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speakers view.

This rule, Goldberg said, puts the argument right back where it started the state can claim that the space is non-public, where they have a right to limit the legislators free speech in the interest of decorum. But the ruling, and subsequent punishments, have to be applied evenly which is where Goldberg said he believes the state runs afoul.

I think the argument on the side of the legislators will be that the application of these restrictions, in the form of expulsion and censure, is applied in an overbroad way, he said. What we're talking about here is viewpoint discrimination: you've treated these three on this side of the issue differently than you might have treated people who might be against gun control.

In essence, Goldberg said the state may have an arguable right to limit expression of free speech on the floor but the First Amendment violation comes not in the limitation itself, but in the consistency of punishment for violations of these limitations.

I think that that going from zero to 60, so to speak, and kicking two members out is what we would call overbroad, Goldberg said. There's a whole lot of actions that can, and probably should have been, taken in the middle. And frankly, a whole lot of actions that would probably have been applied to others, and historically have been applied to others, and not applied in this case. So these three could not have predicted they would have gotten in trouble for engaging in a First Amendment-based action. Thats a defense in itself.

One thing that was not up for debate, however, was the overwhelming display of the First Amendment from the thousands of demonstrators that rallied at the Capitol over the past few weeks.

It's just great that so many people come out and use nonviolent protest, and the right of assembly, to try to affect change on an issue, Goldberg said. It was multigenerational, and I love seeing kids protest. Its why we do this work: that the freedom for each generation continues, that this tradition we've had in the country of love of assembly of speech, and of petitionall five rights that came squarely into play here.

The USA Today Network - Tennessee's coverage of First Amendment issues is funded through a collaboration between the Freedom Forum and Journalism Funding Partners.

Have a story to tell? Reach Angele Latham by email at alatham@gannett.com, by phone at 731-343-5212, or follow her on Twitter at @angele_latham

See the rest here:
A 'symbolic attack': How the First Amendment was front and center during expulsion debate - Tennessean

From Singh v. Amar, decided Dec. 5 by Judge Sue Myerscough (C.D. Ill.):

Plaintiff is a second-year law student at the University of Illinois College of Law. Mr. Singh enrolled in the University on a full-tuition merit scholarship and eventually was invited to join the Illinois Law Review.

Shortly after beginning his first semester, Mr. Singh met with Defendant Virginia Vermillion, the law school's Dean of Students, to amend his law school application. He alleges that Dean Vermillion responded to his request by remarking that "[y]ou fucking [M]iddle [E]asterners are untrustworthy." Mr. Singh is of Sikh origin.

After his first semester, Mr. Singh filed formal complaints against instructors who he believed had graded his coursework and exams capriciously. Mr. Singh also had conflicts with other students and school administrators. The school made several informal attempts to resolve Mr. Singh's concerns and disputes, but those attempts were unsuccessful.

In April 2022, Dean Vermillion contacted the University of Illinois Behavioral Intervention Team (BIT) to share her concerns regarding Mr. Singh's behavior. Dean Vermillion alleged that Mr. Singh had threatened Dean Vermillion and other administrators, made female instructors and students uncomfortable, and shown signs of "disjointed" thinking.

Illinois law requires that post-secondary institutions take preventive and proactive action to prevent campus violence. The BIT therefore assesses and monitors "students exhibiting aberrant, dangerous, or threatening behavior." To ensure that the BIT's work is unimpeded, the University's various codes of conduct require the subject of a BIT complaint to comply with any "reasonable" directives. Failure to comply with BIT's directives can result in disciplinary sanction, including dismissal.

In June 2022, Defendant Katherine Snyder, the University's Associate Dean of Students and a member of the BIT, reached out to Mr. Singh to request an informal, non-disciplinary meeting regarding Dean Vermillion's claims. Dean Snyder wrote that such a meeting was "a necessary and required step in the process when we are made aware of situations such as this one." But Mr. Singh declined to accept Dean Snyder's invitation. Instead, Mr. Singh responded that the First Amendment shielded him from "compulsory speech," demanded access to his student records, and threatened to take legal action.

On November 18, Mr. Singh filed this suit pursuant to 42 U.S.C. 1983, Title VI of the Civil Rights Act of 1964, and Title IX of the Education Amendments of 1972. The Complaint1 alleges that Defendantsall officials, employees, and trustees of the University of Illinoisviolated Mr. Singh's First, Fifth, and Fourteenth Amendment rights by compelling him to meet with the BIT, retaliating against him for his exercise of his right to free speech, and subjecting him to the strictures of an unconstitutionally vague code of conduct.

Mr. Singh seeks a preliminary injunction [that] would bar Defendants from subjecting him to further disciplinary process during the pendency of this case.

The first question is whether denying Mr. Singh an injunction will cause him irreparable harm. Mr. Singh argues that any number of consequencesfrom a compulsory meeting with the BIT to the premature demise of his legal careerwould follow. In response, Defendants contend that "the stakes are much lower." They say that Mr. Singh's "decision not to meet with BIT" would be "the sole cause of any 'irreparable harm' he now claims to face."

Irreparable harm "means an injury that money cannot repair." Put differently, irreparable harm is that which cannot be rectified by a favorable final judgment and an award of money damages or a permanent injunction. "Not every conceivable injury entitles a litigant to a preliminary injunction," and "[i]ssuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief."

As noted above, Mr. Singh alleges two discrete irreparable harms. He alleges that in the absence of an injunction he will be compelled to speak with the BIT, and in so doing will suffer a violation of his First Amendment right "to refrain from speaking at all." Mr. Singh also alleges that he will be expelled from the University if he continues to assert that right by declining to meet with the BIT.

The gravity of Mr. Singh's allegations is obvious. And the disciplinary sanctions that Mr. Singh may face are troubling. But the harms he alleges here are too speculative to warrant the extraordinary measure of preliminary injunctive relief. Prohibiting the University "from enforcing a universally applicable disciplinary code does not seem to this court, on this limited record, to be a reasonable solution to this very difficult problem."

First, Mr. Singh has not shown that meeting with the BIT will cause him irreparable constitutional harm. The First Amendment prohibits state institutions from compelling individuals "to voice ideas with which they disagree." As the parties agree, the University's codes of conduct obligate Mr. Singh to comply with the BIT's "reasonable" requests. But nothing indicates that the University intends to force Mr. Singh to engage in the kind of speech protected by the First Amendment. The codes of conduct do not require that Mr. Singh take a particular position or disavow a particular viewpoint. Compare Pl.'s Ex. G (requiring meeting with BIT members "to get to the bottom of your many conflicts and the allegations you assert in them") with Miller v. Skumanick (M.D. Pa. 2009), aff'd sub nom. Miller v. Mitchell (3d Cir. 2010) (requiring that teenagers accused of "sexting" expressly repudiate the activity, in writing, to avoid criminal prosecution). Indeed, the codes of conduct do not require that Mr. Singh utter a single word. On this record, the Court cannot find that by meeting with the BIT, Mr. Singh will suffer an irreparable harm.

Nor has Mr. Singh shown that allowing the University's disciplinary process to move forward will cause him irreparable harm. Muchif not allof the reasoned case law suggests otherwise. E.g., Noakes v. Case Western Reserve Univ. (N.D. Ohio 2021) (finding consequences of pending medical-school disciplinary proceeding neither "certain" nor "immediate"); Doe v. Univ. of Chicago (N.D. Ill. 2017) (finding student's claim that disciplinary process would "threaten[ ] his reputation and his educational opportunities too speculative to constitute irreparable harm").

Mr. Singh alleges that the only path forward ends in his expulsion. If that proves to be the case, or if the University's disciplinary process is otherwise procedurally infirm, then Mr. Singh's dismissal from law school may well constitute an irreparable harm. Yet the possibility of a sanction is not the same as its guarantee. Until Mr. Singh's "hearing is eventually held, we do not know that harm will result; a tribunal might very well clear [Mr. Singh] of any wrongdoing." And until these processes have run their course, the Court cannot find a clear showing of irreparable harm.

The decision was appealed, but has now apparently been settled, so the appeal will likely be dismissed (but the district decision will remain as potentially persuasive precedent). Congratulations to Katherine Tierney and Michael D Hayes (Husch Blackwell LLP), who represent the university defendants.

See original here:
No First Amendment Violation in Requiring Law Student to Meet with "Behavior Intervention Team" Related to ... - Reason

I cannot believe that this is happening to me again, and that the implications are even greater than they may have been in this first trial that I went through, she said, from her East Coast home, in a location she prefers not to share. And after what I went through and after what my family had to go through, and considering the clear, long-lasting harm that this had on me. I just can't believe that anybody would question whether or not this is a true threat.

Countermans public defenders contend his conviction was a violation of his free speech and appealed his case all the way up to the U.S. Supreme Court. They argue that Counterman was mentally ill and never intended to hurt Whalen and that he didnt understand the messages to be truly threatening because of that mental illness. They also argue that the notion that people could be imprisoned for things they say online opens up a larger free speech debate that touches on First Amendment protections.

I think it really highlights the kind of errors that can happen here, said John Elwood, a Washington, D.C.-based attorney who will argue the case on behalf of Counterman this week. The words coming out of someones mouth, he really did not understand them to be a threat. Here, there is a real reason to believe he didnt understand it in those terms.

For Whalen, her ordeal has now spanned more than a decade and nearly derailed her emerging career and upended her life.

Shes had to leave Colorado, change careers and push herself through fears she never thought were possible, like panicking about playing in front of people she cant see. She stopped doing live performances and waited to restart until she felt stronger.

I realized that trauma doesnt just heal because somebody goes to jail, she said. The damage had been done. What I anticipated was that I would be the person that I was before the trial and when the trial ended. And what I found was that I was not.

The months between when Counterman was arrested and when he was convicted and sentenced were among the most harrowing for Whalen, who knew that he could have been angry that she reported him to police.

He was out on the streets with me, she said.

At the suggestion of police detectives, Whalen took a concealed-carry class and began carrying around a gun something she had never done before. She varied her routes so she would be harder to follow.

And, increasingly, she found it extremely difficult to do what she loved best: sing and perform.

She began feeling terrified when performing in dark rooms where she couldnt see everyone.

At one particular performance in Dallas, her palms got clammy, she started seeing spots and was having trouble breathing. At the time, the now 43-year-old thought she was having a heart attack. She played one more song, sitting down, and then had to leave the stage. She went to a dressing room and cried hard for a very long time. When she finally came out to talk to her bandmates, she told them she didnt know if she could keep singing.

I told them, I don't know if any dream is worth feeling this terrible, she said.

During Countermans trial, she testified about the fear he put her through.

I decided to take the stand and that meant I had to prove that I suffered serious emotional distress, she said. I had to speak out loud in front of this man about all of the nightmares and sleepless nights and the canceled shows and not being able to go anywhere alone.

Once Counterman went to prison, Whalen thought shed be able to bounce right back to the performer she was before it all happened.

I thought that life would be mine again and sadly it wasnt, she said. We got this conviction but I still lost my dream. It was my dream and it wasnt his right to take that from me.

Whalen knew she needed to get out of Colorado and do something different. She accepted a marketing job on the East Coast, where she ended up meeting her husband and having two children.

I had changed so much, she said. Playing music, songwriting, performing, connecting with people in that way, thats who I am. Thats my dream. Thats what Ive always done. The fact that Im not playing much music these days is shocking to the people that have known me the longest. We're not just talking about a job that I lost here.

Whalen said it took years to heal.

I tried to find other ways to fulfill my passion, hoping that music would someday be available to me again, she said.

But she has just started to come back. She wrote a song about the experience called Stronger and she has even started playing live but only to small crowds, usually by invite only.

Then, she got the news that the U.S. Supreme Court was going to take a look at the constitutionality of the states decision to imprison her convicted stalker and whether those messages should have been protected speech.

I am just astounded, Whalen said. I cannot believe that this is happening to me again.

Whalen is torn about how to be present for the case now.

On one hand, she comes from a long line of public servants and she feels the responsibility to explain her side of the story and to convey how truly horrifying the years were when she was on the receiving end of so many unwanted messages.

One detective estimated that Counterman had sent her hundreds of thousands of messages maybe even one million of them. Whalen didnt read them all.

But shes worked so hard to get past the experience and doesnt want a major emotional setback. She decided not to go to arguments in person in Washington, D.C., on Wednesday. And she doesnt even know whether shell listen to them online.

We are here debating a law whose outcome could have serious implications for victims of cyber harassment and cyber stalking all over the United States, and reminding people that there are real humans whose lives are really damaged by this type of threatening speech, she said. Lawyers and justices can pull apart the single messages that he sent me. Was this one threatening? Was that one threatening? But the bigger picture, the lived experience is much more than that.

Original post:
One Colorado stalking victim never wanted to become the center of a First Amendment case at the US Supreme Court - Colorado Public Radio