Archive for the ‘First Amendment’ Category
The Anti-Abortion Movement’s Attempt to Criminalize Abortion Speech – Ms. Magazine
Abortion rights activists at the Womens March on Oct. 8, 2022 in Los Angeles. (Sarah Morris / Getty Images)
Censorship is a dirty word in America, and so it should be. It imposes silence upon speech, creating an empty void which instead should be filled with debate and discussion. As anti-abortion lawmakers continue to draft legislation to limit abortion access, opponents of new bans are horrified by the sweeping prohibitions lurking withinsuch as proposals that censor discussion on the topic, or worse, throw those who dare to speak behind bars.
On June 15, 2022, almost a month after thepublication of the leaked version of theDobbs v. Jackson Womens Health Organizationdecision overturningRoe,and just days before the final decision was delivered, James Bopp Sr., general counsel to the National Right to Life Committee (NRLC), sent a nationwide memo outlining model legislation for a post-Roe United States. The legislation is designed to criminalize all aspects of abortion care from the moment of conception until birth.
The legislation both seeks to criminalize abortion within a state, and create impediments for a woman to obtain a legal abortion outside her state of residence if she lives in an anti-abortion state. Among the more terrifying aspects of the proposed legislation is the criminalization of any speech in anti-abortion states designed to provide information about the procedure, including transmission over the telephone, the internet, or any other medium of communication. The NRLC legislation does not criminalize the speech by the pregnant persononly for those on the other end of the conversation. It also prohibits anyone from providing instructions, encouraging, or in any way communicating in a manner that could facilitate an abortion.
Addressing practicality first, is the obvious unworkability of criminalizing internet speech in one state while it remains legal in another. Legislative attempts to prohibit speech over the internet have consistentlyfailed to overcome First Amendment barriers. Muting and muzzling speech because the government seeks to control public conversation is unconstitutional; asthe Supreme Court has stated, a bedrock principle underlying the First Amendment is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.
In First Amendment constitutional parlance, silencing speech or writing before a word is uttered is called a prior restraintdescribed asthe single most intrusive and dangerous form of government conduct threatening freedom of expression.The First Amendment was crafted to protect the speaking environment and to allow space for ideas, opinions and information to flow so that all opinions and viewpointsthose promoted by the powerful as well as the weak, the educated as well as the uneducated, the god-fearing as well as those who recognize no godhave the right to speak.
In fact, the First Amendment does its most important work when it shields words offered by those promoting unpopular sentiments and beliefs.Critical and robust debate is necessary to ensure the proper functioning of democracy. It could be argued that those who want to control information so that it is not subject to the scrutiny of the marketplace of ideasare fearfulthat their ideas and proposals are not strong enough to survive the assault.
A bedrock principle underlying the First Amendment is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.
A corollary to the right to speak is the audiences right to know. Anti-abortion states might defend abortion-related censorship as necessary in protecting the unborn, but censorship of informative speech may actually undermine the safety of both the unborn and the pregnant person. Indeed, previous Supreme Court decisionshaveinvalidated laws that require information be withheld from the public for its own good, and the justices have chastised the government for overstepping.
The NRLC and its allies have chosen to ignore the right to opine, express and debate enshrined in the protective words of the First Amendment: Congress shall make no law abridging the freedom of speech. Those words are also applied to state legislatures through the 14th Amendment. While it is a fools game to predict how the current justices sitting on the Supreme Court would rule if the model legislation ever became law, we can hope this time they will respect the precedent of the last 50 years and find the provisions of the model law that affect speech to be unconstitutional.
U.S. democracy is at a dangerous inflection pointfrom the demise of abortion rights, to a lack of pay equity and parental leave, to skyrocketing maternal mortality, and attacks on trans health. Left unchecked, these crises will lead to wider gaps in political participation and representation. For 50 years, Ms. has been forging feminist journalismreporting, rebelling and truth-telling from the front-lines, championing the Equal Rights Amendment, and centering the stories of those most impacted. With all thats at stake for equality, we are redoubling our commitment for the next 50 years. In turn, we need your help, Support Ms. today with a donationany amount that is meaningful to you. For as little as $5 each month, youll receive the print magazine along with our e-newsletters, action alerts, and invitations to Ms. Studios events and podcasts. We are grateful for your loyalty and ferocity.
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The Anti-Abortion Movement's Attempt to Criminalize Abortion Speech - Ms. Magazine
$100K settlement reached in lawsuit over Baltimore County’s handling of sexual assault case – Baltimore Sun
Baltimore County and the state would each pay $50,000 under a settlement reached with a woman who argued her First Amendment rights were violated when county officials attempted to dissuade her from filing rape charges.
The state Board of Public Works must still approve the states share of the settlement payment. According to an online agenda, the matter will be considered at the boards Oct. 26 meeting. The county is paying $50,000, said Erica Palmisano, spokeswoman for the county executives office.
The settlement was first announced last month, days before the case was set to go to trial in U.S. District Court. But the settlement amount was not made public.
If approved by the board later this month, the settlement would conclude the yearslong legal battle over the handling of rape allegations by the countys top prosecutor Scott Shellenberger and the county police department.
The case stems from an incident in 2017, when the woman was a college student. The Baltimore Sun does not typically identify individuals who say they are survivors of sexual assault.
The woman, then a Towson University student, has said an assault took place when she and another female student were in an apartment with three University of Maryland Baltimore County baseball players.
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Both women told police they had blacked out or passed out and were sexually assaulted by the men. The men have said the acts were consensual.
The Baltimore County States Attorneys Office declined to bring charges against the men, and so the woman opted to attempt to bring charges against them herself, by filing a statement of charges with the court commissioner. Her first try failed, but after her second attempt, a different commissioner charged the men with rape and sex offenses in 2018.
But before officials could deliver the criminal summonses, Shellenberger dispatched police officers to the womans home, according to her legal filing. Once there, they spoke with her grandmother, and stated that she risked facing criminal charges of her own if she pursued the charges against the men. Ultimately, prosecutors dropped the charges against the men.
The womans account was included in a broader class-action lawsuit filed by several women against Baltimore County and UMBC. But in 2020, U.S. District Judge Deborah K. Chasanow threw out all of the claims except hers.
Her case, focused on possible First Amendment violations, was allowed to go forward. In a rare move last year, Chasanow denied immunity for Shellenberger, opening the door for a trial or a settlement in the womans case.
The three baseball players received $150,000 each from the university in a defamation case, after they were named in an article about the assault allegations by the campus newspaper, The Retriever. The university is under a U.S. Department of Justice investigation into its Title IX compliance and response to sexual harassment complaints.
Shellenbergers record on sexual misconduct allegations was questioned frequently during his recent reelection bid. Ultimately, Shellenberger won a narrow victory over his first primary challenger since his election in 2006.
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$100K settlement reached in lawsuit over Baltimore County's handling of sexual assault case - Baltimore Sun
Haddonfield board of ed to vote on updated policies at next meeting – The Sun Newspapers
EMILY LIU/The Sun
The Haddonfield School District Board of Education meeting on Oct. 13 was a work session to review the agenda for an action meeting Thursday.
In a response to prior discussions, board member Lynn Hoag said a new form has been released and made available for parents to opt their students out of health, sex-ed, family life and dissections courses. Assistant Superintendent Gino Priolo explained what happens when a parent wants to opt their student out of a course other than what is listed and in accordance with New Jersey law.
Sometimes parents might want to opt out of something that goes beyond the scope of whats required by statute, and the process there is to schedule a meeting with the principal and have an open dialogue about understanding the unique concerns that might be brought and talk factually about what is or isnt part of the curriculum or being presented, Priolo explained.
Once those two views are heard, the principal will follow with what options are available in that case.
The opt-out form is available on the district website under Parents and lists a Parents statement of conflict with conscious form, in addition to the districts position on the right to opt out.
Up for second reading at the next board meeting will be two policies. The first is on bias crimes or bias-related acts that had previously omitted a phrase requiring the district to notify the borough police department and the bias investigation officer for the county prosecutors office when a bias crime or bias-related act has been committed. Though there had been discussion about the ramifications of reporting minors for unintentional acts, the language has been reincluded in the update for the policy.
The resolution on the agenda list(s) reasons that the board might oppose these changes, said Hoag, though none were seen on the draft of the policy available on the district website.
Additionally, the board will vote on an update to Policy 2240 on controversial issues, which was discussed by the equity council in addition to the policy committee.
In response to community feedback, the committee removed the section that read, In the discussion of any issue, a teacher may express a personal opinion, provided the expression is characterized as personal opinion and does not attempt to persuade students to the teachers point of view from the updated policy.
Central to our research surrounds the First Amendment right of teachers, the board wrote in a statement on the matter. We consulted with the school districts solicitor and our policy consultant, Strauss Esmay Associates. Our research concluded that removing the phrase, a teacher may express a personal opinion from the policy would not violate the First Amendment rights of teachers and is supported in case law.
Up for introduction on first reading at Thursdays meeting will be an updated dress code for district and support staff members more specific than what was in place.
(This is) just cleaning up and updating, Hoag noted. We all got a little relaxed during COVID, so this is just to encourage professionalism in attire.
The new regulations deem the following items inappropriate for a staff member to wear: ripped or torn jeans; shorts, sweatpants or workout attire; T-shirts with writing, images and advertising brands; strapless shirts and dresses; beach wear; and hats or head coverings, unless approved for medical or religious reasons.
Board member David Siedell questioned whether teachers wearing shirts that support the l district or other Haddonfield-related attire would be considered advertising or branding, and Priolo suggested a grace period for teachers who might need to make adjustments to their wardrobes.
During the boards committee of the whole meeting, members discussed the purpose and aim of the equity council. While no decisions were made, the board revisited the context behind the councils creation and acknowledged the work it has done to engage the community and lead to more inclusivity and understanding.
Thursdays board meeting will begin at 7 p.m. at the high-school library.
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Haddonfield board of ed to vote on updated policies at next meeting - The Sun Newspapers
The Week That Was – Lawfare
Quinta Jurecic discussed former President Trumps consistent pattern of attempting to stymie the Mueller investigation, the work of the House select committee to investigate Jan. 6 and the Justice Departments Mar-a-Lago investigation, and the legal implications for the ongoing investigations now that Trump is no longer president.
Hyemin Han shared the Justice Department's opening brief in the Eleventh Circuit for an appeal of U.S. District Court Judge Aileen Cannon's Sept. 5 order appointing a special master to oversee privilege claims of documents seized during the Aug. 8 search of former President Donald Trumps Mar-a-Lago residence. It asked the Eleventh Circuit to vacate Cannons order in its entirety with instructions to dismiss the case.
Han also shared the Justice Departments Oct. 11 response in opposition to former President Trumps Oct. 4 application to the Supreme Court for a partial vacatur of the U.S. Court of Appeals for the Eleventh Circuits Sept. 21 order allowing the Justice Department to resume use of materials it has been previously enjoined from using in a Sept. 5 order by U.S. District Judge Aileen Cannon.
William Appleton shared a livestream of the Jan. 6 Select Committees Oct. 13 hearing, announced as the final one. The Lawfare team also hosted a Twitter Spaces on the hearing at 5 p.m. ET.
Hadley Baker shared an episode of Lawfare No Bull which featured audio from the Jan. 6 committees ninth public hearing:
Benjamin Wittes sat down for a conversation with Jurecic, Alan Rozenshtein, and Molly Reynolds on Twitter Spaces to discuss the ninth Jan. 6 select committee hearing, the subpoena of Donald Trump, how this all could impact the upcoming midterm elections, and the performance of the committee given the constraints it faced:
Katherine Pompilio shared former President Donald Trumps letter in response to the House select committees decision to issue him a subpoena seeking information about his involvement in the Jan. 6 attack on the U.S. Capitol.
Han also shared the Biden-Harris administrations first National Security Strategy which details the administrations enduring vision for the U.S. in the coming decade, its views on investment priorities, the administrations global priorities, and a breakdown of the administration's national security strategy by region.
Stewart Baker, Nick Weaver, Matthew Heiman, and Brian Fleming sat down to discuss the White House Blueprint for an AI Bill of Rights, the criminal conviction of Ubers CSO Joe Sullivan, new export restrictions on U.S. technology and its implications for U.S.-China trade relations, a Russian hack and leak operation, and more:
Henry Farrell and Bruce Schneier discussed the U.S. Treasurys Office of Foreign Assets Controls sanctions of Tornado Cash, a cryptocurrency and money-laundering platform, and the implications for cryptocurrency regulation if decentralized autonomous organizations like Tornado Cash are afforded First Amendment protections.Jordan Schneider sat down for a conversation with Kevin Wolf, partner at Akin Gump, to discuss the U.S. Commerce Department's new export control regulations, what the regulations mean for the global semiconductor industry, and if the regulations are even enforceable:
Chenny Zhang discussed the possibility of the American drug industry experiencing a similar manufacturing crisis as the semiconductor industry due to the increasing likelihood of industry consolidation, the difficulties of the regulatory approval process and its impacts on innovation, and the importance of the U.S. bioeconomy for national security.
Russell Buchan and Joe Devanny responded to a recent Lawfare article on the U.K.s cyber strategy and emphasized the need for a nuanced and incremental development of that strategy to achieve the responsible and democratic use of cyber power.
Han sat down for a conversation with Alexander Downes, professor of political science and international affairs at The George Washington University, to discuss the history of foreign-imposed regime change, what lessons can be learned from past foreign-imposed regime changes, and why, when it actually works, its success doesnt last very long:
Tyler McBrien sat down with Beln Carrasco Rodrguez and Tom Southern of the Center for Information Resilience to discuss their research into how Russia establishes and strengthens occupational rule, the Russian playbook for control, and the ways that forced assimilation may or may not be working:
Benjamin Wittes sat down for a conversation with Svitlana Khytrenko, a Ukrainian student who escaped Kyiv in March, to talk about her experiences as a refugee, her life in Poland, and her feelings about the Russian invasion:
Jordan Schneider sat down for a conversation with Kamil Galeev to discuss the prospects of nuclear war, the stability of the Russian state, Moscows grip on annexed regions, Putins future viability, and more:
Katherine Yon Ebright discussed an obscure counterterrorism authority used to create and control proxy forces across Africa and Asia, its intersection with the 2001 Authorization for Use of Military Force (AUMF), and argued that the executive branchs current interpretation may have gone beyond its previous representations to Congress and the public.
Caleb Johnson and Yang Liu provided a summary of President Joe Bidens Oct. 7 executive order which laid out a framework in which the government can conduct signals intelligence activities; establishes a three-layer redress mechanism to address potential violations of privacy, civil liberties, or law; and also fulfills prior commitments to provide higher privacy protections and a more durable basis for future trans-Atlantic data flows.
Renee DiResta and John Perrino discussed the new history of U.S. military information campaigns, how it illustrates the challenges of reaching and influencing online audiences, and argued for a U.S. policy of radical transparency in the information ecosystem in contrast to the opaque policies and disinformation campaigns of authoritarian adversaries such as Russia.
David Priess sat down for a chat with Jordan Taylor, historian and author of Misinformation Nation: Foreign News and the Politics of Truth in Revolutionary America. They discussed the persistence of misinformation, the origins and limits of newspapers in colonial America, the Illuminati scare of 1798-99, and more:
McBrien also reviewed Sierra Pettengills documentary Riotsville, U.S.A. (2022) which illustrates the history of police militarization in the United States, the legacies of the Kerner Commission, and the importance of investigating the origins of repressive social forces.
Wittes also sat down with Jurecic, Rozenshtein, and Scott R. Anderson to discuss the current state of Section 230 of the Communications Decency Act, the two cases recently taken up by the Supreme Court relating to Section 230, and what the correct interpretation of 230if there is onemight look like:
Rozenshtein, Jurecic, and Anderson also sat down with Ashley Deeks, professor of law at the University of Virginia Law School, to discuss some of the weeks big national security news including: developments in the Russia-Ukraine conflict, Saudi Arabias decision to cut oil production, and the Supreme Court's decision to take up two cases related to Section 230 of the Communications Decency Act:
And that was the week that was.
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The Week That Was - Lawfare