1st Amendment Thread

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Gay Talk: Protecting Free Speech for Public School Teachers

Stephen Elkind and Peter Kauffman

43 J.L. & Educ. 147 (Spring 2014)

Abstract:

In Garcetti v. Ceballos, the Supreme Court held that public employees are not entitled to free speech when speaking “pursuant to their official duties.” In most situations, this strips teachers of First Amendment protection when they discuss controversial subjects, such as homosexuality, with their students. To ensure their classrooms are tolerant and accepting environments for homosexual and questioning youth, teachers need free speech protection against adverse employment action their schools might take. The Garcetti Court, acknowledging that “expression related to academic scholarship and classroom instruction implicates” unique constitutional concerns, explicitly left open whether its decision applied in the education context. Due to the harms restricting teachers’ speech about homosexuality can cause students, not to mention community members and the teachers themselves, this paper argues that when the Supreme Court revisits the question it left open in Garcetti, it should create an exception for both university professors and public school teachers.

Full Article: http://papers.ssrn.com/sol3/papers.cfm? ... id=2292809

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Sexting and Freedom of Expression: A Comparative Approach

Joanne Sweeny

102 Ky. L.J. 103 (2013/2014)

Abstract:

According to a recent poll, one in four American teens could be legally labeled a child pornographer. Nearly thirty percent of teens in this poll admitted to engaging in "sexting," which may expose them to criminal prosecution under existing child pornography laws. "Sexting" is the modern term given to "the practice of sending or posting sexually suggestive text messages and images, including nude or semi-nude photographs, via cellular telephones or over the Internet." It is an increasingly popular practice in the United States and abroad and, according to current child pornography laws, can result in teens serving long prison sentences and having to register as sex offenders.
...
Despite the press coverage of teenage sexting cases, no American court has addressed whether sexting is protected by freedom of expression under the First Amendment. 20 Current scholarship on sexting focuses mainly on the problem of charging teens under child pornography statutes, often with recommendations for changing legislation. 21 Scholars who do address the issue generally do so only superficially to identify the problem to be solved with new legislation. 22 Internationally, this author was able to identify only one scholarly article that examined sexting in the United Kingdom, which leaves the international aspect of sexting largely unexplored. 23

To combat these gaps in existing literature, this article will consider the different ways that the United States and United Kingdom have treated both sexting prosecutions and freedom of expression as applied to child pornography laws. In Part I, this article will analyze the social and legal problems created by sexting teens in the United States and internationally. Part II will examine the United States' reaction to teenage sexting as well as possible freedom of expression challenges sexting teenagers can bring against the application of child pornography statutes to their sexting activities.

Full Article: http://papers.ssrn.com/sol3/papers.cfm? ... id=2434221

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"Hobby-Lobby"-ing for Religious Freedom: Crafting the Religious Employer Exemption to the PPACA

Emily Pitt Mattingly

102 Ky. L.J. 183 (2013/2014)

Founded and privately held by CEO David Green and his family, Hobby Lobby is one of the nation's leading arts and crafts chains, operating over 500 stores in forty- one states with more than 13,000 full-time employees who are eligible for health insurance coverage. 4 Despite its tremendous success, Hobby Lobby is currently in the midst of a battle to preserve its religious liberty. 5

In September 2012, Hobby Lobby and a Christian bookstore chain, Mardel, filed a lawsuit in the Western District of Oklahoma, challenging on various religious grounds the Patient Protection and Affordable Care Act's (PPACA) 6 requirement that insurance provided by employers include coverage for women's preventive screenings and health care, including contraception, at no additional cost to employees. 7 Green has spoken about his family's dilemma, explaining that, "(b)y being required to make a choice between sacrificing our faith [and] paying millions of dollars in fines, we essentially must choose which poison pill to swallow." 8 Indeed, with 13,000 employees and a proposed fine of $ 100 per employee per day, Hobby Lobby's failure to comply with the mandate would equate to $ 1.3 million in daily fines. 9 Following the U.S. Supreme Court's denial of a preliminary injunction to prevent enforcement of the contraception-coverage requirement on December 26, 2012, 10 the Green family released a statement disclosing its intent to defy the law despite the significant fines. 11

Hobby Lobby is representative of the numerous religious employers across the United States who have filed lawsuits challenging the PPACA's contraceptive mandate. Although the majority of these cases have been dismissed in the district courts for various procedural reasons, a few have made their way to the federal courts of appeals. 12 Regarding the Hobby Lobby lawsuit, Pastor Rick Warren commented:

I predict that the battle to preserve religious liberty for all . . . will likely become the civil rights movement of this decade. If it takes a popular movement to reign in overreaching government, then Hobby Lobby's courageous stand, in the face of enormous pressure and fines, will likely be considered the Birmingham bus boycott . . . . Regardless of your faith, you should pay attention to this landmark case, and pray for a clear victory for freedom of conscience. 13

...

Part I of this Note traces the background and development of section 2713 of the PPACA. Part II discusses the popular variations of exemptions to state-mandated prescription contraceptive coverage in comparison to the exemption adopted by the Department of Health and Human Services (HHS). 16 As part of this discussion, Part II briefly outlines the only two state high court decisions that have dealt with the issue of contraceptive mandates and identifies various weak points in the opinions that undermine their value as "precedent" for the U.S. Supreme Court. For example, in Catholic Charities of Sacramento v. Superior Court, the California Supreme Court merely skimmed the surface of eight constitutional challenges asserted by a nonprofit organization in order to avoid an undoubtedly lengthy, but adequate and fair assessment of the claims. 17 Similarly, in Catholic Charities of the Diocese of Albany v. Serio, the New York Court of Appeals was sharply dismissive of the plaintiff's claims. 18 Part II describes the nationwide discontent with the current exemption and identifies the potential economic and regulatory consequences of limiting it to such a narrow scope.

Finally, Part III justifies the need for a broader exemption. First, it advocates for passage of the "Notice of Proposed Rulemaking" (NPRM) announced February 1, 2013, by the Department of Health and Human Services intended to moderately broaden the scope of the religious employer exemption to the PPACA to reach certain nonprofit organizations. 19 Part III also argues for further expansion of those proposed rules to ensure that Christian for-profit organizations like Hobby Lobby are not forced to comply with a law that goes against their religious beliefs.

Full Article: http://law-apache.uky.edu/wordpress/wp- ... tingly.pdf

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Americans have First Amendment right to film police, US appeals court rules

May 29, 2014

Robyn Beck

A federal appeals court has ruled that Americans have the right to videotape police officers in public, thereby allowing a court case brought against New Hampshire police to progress.

Carla Gericke was arrested in 2010 for videotaping members of the Weare Police Department who pulled over her friend during a traffic stop. Her video camera malfunctioned, however, and she failed to record evidence of the incident.

Nevertheless, Gericke was arrested for disobeying a police officer, obstructing a government official, and "unlawful interception of oral communications," the court said. Concerning her failed efforts to record the incident, the court noted that the malfunction was irrelevant: "We agree that Gericke's First Amendment right does not depend on whether her attempt to videotape was frustrated by a technical malfunction. There is no dispute that she took out the camera in order to record the traffic stop."

Although Carla Gericke was never brought to trial, she subsequently sued the Town of Weare, its police department, and the officers who arrested and charged her, alleging in pertinent part that the “wiretapping charge constituted retaliatory prosecution in violation of her First Amendment rights,” according to the appeal statement.

The police officers involved in her arrest argued they should be immune from a lawsuit.

The First US Circuit Court of Appeals ruled that Gericke "was exercising a clearly established First Amendment right when she attempted to film the traffic stop in the absence of a police order to stop filming or leave the area."

"It is clearly established in this circuit that police officers cannot, consistently with the Constitution, prosecute citizens for violating wiretapping laws when they peacefully record a police officer performing his or her official duties in a public area," the appeals court said.



The First Circuit covers Massachusetts, New Hampshire, Maine, and Rhode Island and sent the case back to a lower court for trial.

The ruling allows her lawsuit to proceed.

http://rt.com/usa/162272-police-film-appeals-court/

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Supreme court declines to hear NYT journalist leak case

Reuters - Lawrence Hurley

WASHINGTON (Reuters) - The U.S. Supreme Court on Monday declined to weigh whether journalists have special free speech protections that allow them to avoid being forced to testify in government leak cases.

The court rejected an appeal filed by New York Times eporter James Risen, leaving intact a July 2013 ruling by the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals, which said Risen must testify in a high-profile case.

Prosecutors want Risen’s testimony because they think information in his book, "State of War," was leaked by former CIA officer Jeffrey Sterling.

In 2010, Sterling was indicted on 10 charges relating to Risen's book, including unauthorized retention and communication of national defense information.

Last week, Attorney General Eric Holder told a group of media executives that no reporter would ever be jailed while he is in office for carrying out news gathering duties, according to a Justice Department summary of the meeting.

Last summer the Justice Department also pledged to tighten its criteria for targeting journalists in leak cases.

The appeals court ruling concerned a 2011 subpoena that Holder authorized in relation to Sterling’s trial, which has yet to take place.

Risen responded he could not be compelled to testify. The appeals court ruled that there is no "reporter's privilege" under the First Amendment's guarantee of freedom of speech, meaning journalists do not receive special treatment.

Various media organizations, including Reuters America LLC, which is owned by Thomson Reuters Corp, joined a friend-of-the-court brief in support of Risen.

The case is Risen v. United States, U.S. Supreme Court, No. 13-1009.

So much for that. Next case.

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FOR-PROFIT CORPORATIONS, FREE EXERCISE, AND THE HHS MANDATE

Scott Gaylord

91 Wash. U. L. Rev. 589 (2014)

Abstract

Under the Patient Protection and Affordable Care Act, most employers must provide their employees with health insurance that covers all FDA-approved contraceptive methods and sterilization procedures (the “HHS mandate”). Across the country, individuals, religious schools, and corporations have sued to enjoin the mandate, arguing, among other things, that it violates the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act (“RFRA”). These cases require the federal courts to sort out the complex relationship between the Free Exercise Clause and laws that are alleged to be neutral and generally applicable, such as the HHS mandate. But they also raise a novel threshold question: whether corporations can exercise religion under the First Amendment and RFRA. As several federal courts have noted, whether secular corporations can exercise religion is an open question. To date, this question has confounded the courts, resulting in a split between the Third, Sixth, Seventh, Tenth, and D.C. Circuits as well as the numerous district courts that have ruled on challenges to the HHS mandate. The Supreme Court recently granted certiorari in two of these cases, Hobby Lobby (Tenth Circuit) and Conestoga Wood Specialties (Third Circuit). This Article analyzes this novel and unresolved issue, arguing that the Supreme Court should follow its reasoning in Bellotti and Citizens United and hold that, just as corporations can engage in free speech, for-profit corporations can exercise religion under the Free Exercise Clause and RFRA.

Although never having addressed this specific issue, I argue that the Supreme Court has established rules for determining whether corporations can invoke particular constitutional rights and that, under these rules, corporations can invoke the protection of the Free Exercise Clause. The Third and Sixth Circuits, along with several district courts have reached the opposite conclusion, while several others have avoided the issue altogether. Relying primarily on a single footnote in Bellotti, the courts denying free exercise protection to for-profit corporations maintain that the free exercise of religion is a “purely personal” right that is limited to individuals and religious non-profit organizations. This Article contends, however, that a more detailed review of Bellotti, Citizens United, and the Court’s other decisions regarding the constitutional rights of corporations reveals that free exercise, like the freedom of speech, is not a “purely personal” right. Consequently, corporations—whether for-profit or non-profit—can claim its protection. Moreover, in the wake of Bellotti and Citizens United, neither the “profit motive” of a for-profit corporation nor the “religious nature” of religious organizations (e.g., churches) justifies limiting the Free Exercise Clause only to individuals and non-profit religious organizations. Although many (perhaps most) corporations may choose not to engage in religious activities, there is no constitutional basis for precluding a priori all for-profit businesses from raising free exercise claims.

Full Article: http://digitalcommons.law.wustl.edu/law ... 91/iss3/5/

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Virginia group hoists second huge Confederate flag along highway

Gary Robertson

June 2, 2014

RICHMOND Va. (Reuters) - Motorists traveling a major Virginia highway now have a second supersized Confederate flag to catch their attention, even though the first banner drew protests and debate.

The Virginia Flaggers, a group that celebrates the heritage of the Confederacy, raised the 20- by 30-foot (6- by 9-meter) battle flag on Saturday alongside Interstate 95 near Fredericksburg, some 60 miles (96.6 kilometers) north of the state's capital of Richmond.

The group raised its first flag last year along the highway, immediately drawing complaints that it promoted racism and slavery, and leading 24,000 people to sign an online petition against its display.

"We have no problems with people who have different points of view, but we also want them to respect our views," said Barry Isenhour, a spokesman for the Flaggers.

The flag stirs strong emotions in Richmond, where African-Americans are the majority. The city, the former capital of the Confederacy, was the site of the nation’s second-largest slave market.

The Confederacy was formed in 1861, when seven Southern states permitting slavery seceded from the United States.

Isenhour said the new flag, which towers above the trees that line the highway, honors the approximately 250,000 Confederate soldiers who fought in battles near Fredericksburg. The flag is on private property and was funded by donations from around the country, he said, adding that the controversy surrounding the first flag increased donations to the group.

The Flaggers hope to erect more banners in Virginia and elsewhere in the future, and didn’t rule out placing yet another along the interstate, Isenhour said.

Jennifer McClellan, co-chair of the state’s Dr. Martin Luther King Jr. Memorial Commission, said the group is certainly within its rights to fly the Confederate flag, but added that to many, it symbolizes oppression of African-Americans throughout the nation’s history.

"For a lot of Virginians and a lot of Americans, it has a negative connotation," said McClellan, who is also a member of the Virginia House of Delegates. "It has been used by hate groups to promote their beliefs in white supremacy."

http://news.yahoo.com/virginia-group-ho ... ector.html

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Harry Reid knows better than Founding Fathers, moves to rewrite 1st Amendment

Stephen Dinan-The Washington Times

June 3, 2014

Saying the foundations of democracy are threatened, Senate Democrats took the first step Tuesday to rewrite the First Amendment, holding a hearing to rally support for their proposed constitutional change that would give government the power to ban all spending on political campaigns.

The effort drew vows of resistance from Republicans, who harangued Democrats for abandoning free speech rights for political gain. Republican lawmakers said the solution was for Democrats to improve their arguments, not to silence their critics in an assault on fundamental freedoms.

“Where are the liberals today? Why is there not a liberal standing here defending the Bill of Rights and the First Amendment?” Sen. Ted Cruz, Texas Republican, demanded of his Democratic colleagues on the Senate Judiciary Committee.

Forty-three Democrats are sponsoring the amendment, which would give Congress and the states powers to set strict limits — or eliminate — the ability of campaigns, political parties and outside groups to spend money in elections.

Democrats said they were spurred by several recent Supreme Court rulings that have freed up outside groups to spend money advertising for their points of view in elections, leading to a flood of cash, much of it spent anonymously, in the 2012 election.

Signaling the stakes in the fight, the Senate’s top Democrat and Republican testified at the hearing, mounting feverish attacks on each other.

“We sit here today with a simple choice: We can keep the status quo and argue all day and all night, weekends, forever about whose billionaires are right, whose billionaires are wrong, or we can work together to change the system, to get this shady money out of our democracy and restore the basic principles of one American, one vote,” Mr. Reid said.

Mr. Reid acknowledged that he felt “so unclean” after his hard-fought 1998 Senate campaign, when one major donor contributed a quarter of a million dollars to the Nevada Democratic Party and let Mr. Reid know he had done so — apparently an effort to curry favor.

“I hope that didn’t corrupt me, but it was corrupting,” Mr. Reid said.

He continued his assault on the conservative Koch brothers, two billionaires who fund conservative causes and who have become special targets for Mr. Reid.

But Senate Minority Leader Mitch McConnell, Kentucky Republican, said Mr. Reid was attacking the Koch brothers as a smoke screen for “how incredibly bad this proposed amendment is.”

He said even liberal lions such as the late Sen. Edward M. Kennedy voted against this kind of effort. Indeed, a 2001 effort to amend the Constitution on campaign finance was defeated by a 56-40 vote, and a 1997 effort was defeated by an even wider 61-39 vote.

Mr. McConnell said Democrats’ push this year is an election strategy, not a serious effort to work through constitutional issues.

“This proposal is never going to pass Congress. This is a political exercise and that’s all it is. The goal here is to stir up one party’s political base so they’ll show up in November,” he said.

The amendment Democrats are pursuing is strikingly broad. If ratified, the amendment would let federal and state governments set limits on how much money could be contributed to campaigns, spent by candidates or raised and spent by outside interest groups such as the National Rifle Association or the Sierra Club. [Which suggests it's partisan b.s....]

It would make a special provision allowing the press to operate free of restrictions, but that raises other questions about who would qualify for media exemptions.

Amendments take a two-thirds vote of the Senate and the House to be submitted to the states, and then three-fourths of the states would have to ratify them to take effect.

The debate comes down to the purpose of the First Amendment, said Sen. Chuck Grassley, Iowa Republican.

Mr. Grassley said that for the founders, the freedom of speech was an end unto itself, worthy of defending. But he said for modern Democrats, it’s viewed not as an end but a means to an informed democratic debate. Since Democrats judge the democratic debate to be in jeopardy, the free speech rules can be changed.

Sen. Charles E. Schumer, New York Democrat, countered that no amendment is absolute — not even the First Amendment. He said restrictions on pornography or libel are part of a balancing test.

“I think if Thomas Jefferson, the author of the Bill of Rights, were looking down on what’s being proposed here, he’d agree with it. He would agree that the First Amendment cannot be absolute,” Mr. Schumer said.

[de officiis]

Text of proposed amendment:

Section 1. To advance the fundamental principle of political
equality for all, and to protect the integrity of the legislative and
electoral processes, Congress shall have power to regulate the raising
and spending of money and in-kind equivalents with respect to Federal
elections, including through setting limits on--

(1) the amount of contributions to candidates for
nomination for election to, or for election to, Federal office;

and

(2) the amount of funds that may be spent by, in support
of, or in opposition to such candidates.

Section 2. To advance the fundamental principle of political
equality for all, and to protect the integrity of the legislative and
electoral processes, each State shall have power to regulate the
raising and spending of money and in-kind equivalents with respect to
State elections, including through setting limits on--

(1) the amount of contributions to candidates for
nomination for election to, or for election to, State office;

and

(2) the amount of funds that may be spent by, in support
of, or in opposition to such candidates.

Section 3. Nothing in this article shall be construed to grant
Congress the power to abridge the freedom of the press.

Section 4. Congress and the States shall have power to implement
and enforce this article by appropriate legislation.''

http://beta.congress.gov/bill/113th-con ... 9%22%5D%7D

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Trevor Timm at the Freedom of the Press Foundation talks about the ramifications of the Risen case for the Press, and for us.

Supreme Court Rejects Reporter's Privilege Case, As NYT Reporter Faces Jail for Protecting His Source

The Supreme Court today rejected New York Times reporter James Risen's appeal of a 4th Circuit decision that ruled the government can compel him to reveal his source under oath. The case, one of the most important for reporter's privilege in decades, means that Risen has exhausted his appeals and must now either testify in the leak trial of former CIA officer Jeffrey Sterling, or face jail time for being in contempt of court. Risen has admirably vowed to go to prison rather than comply.

This is the latest victory of the Obama administration in their crackdown on sources, and in turn, investigative journalism. As the New York Times again reminded us today, they have "pursued leaks aggressively, bringing criminal charges in eight cases, compared with three under all previous administrations combined."

Make no mistake, this case is a direct attack on the press. The Justice Department has recently tightened its "guidelines" for subpoenaing reporters (which have no enforcement mechanism) and the Obama administration claims it supports a tepid journalist shield law, but this was the case where they could have shown they meant what they said about protecting journalists' rights. Instead, they argued to the court that reporter's privilege does not exist all, even comparing journalists who invoke the privilege to criminals who have recieved drugs.

By going after Risen, the Obama administration has done more damage to reporter's privilege than any other case in forty years, including the Valerie Plame leak investigation that ensnared Judy Miller during the Bush administration. The Fourth Circuit is where many national security reporters live and work, and by eviscerating the privilege there, the government has made national security reporting that much harder in an age where there has already been an explosion in use of surveillance to root out sources of journalists.

While the fight for reporter's privilege will certainly continue, and is by no means dead in much of the country, this case is another reminder that reporters can no longer rely on the legal process to protect their sources. Surveillance has become the government's go-to tool for rooting out a record number of sources and chilling all kinds of investigative journalism. Out of the eight source prosecutions under the Obama administration, the Sterling case is the only one where a reporter was called to testify. As an unnamed national security official reportedly once said a year ago, “the Risen subpoena is one of the last you’ll see. We don’t need to ask who you’re talking to. We know.” :shakinghead:

It's now incumbent upon reporters to use technology to help protect their sources from the first moment they start communicating with them. Encryption—whether it's used with email, chat, or phone calls—is now a vital tool that can no longer be looked at as a luxury or speciality. Whistleblower submission systems, like our SecureDrop project or Globaleaks, should become the norm rather than the exception.

Despite the damage its already done to reporter's privilege on the whole, the government can and should prevent Risen from going to jail by declining to call him to testify in the Sterling trial. Since the Attorney General has repeatedly stated that no reporter will go to jail for doing his or her job, that seems like the least they can do.

As a small tribute to Risen, today is a fitting day to re-read the book chapter that the government has subpoenaed him over. He exposed a disasterous operation by the CIA, where they literally handed over designs to a nuclear bomb to Iran. It is a truly riveting read and the public is better served by knowing what happened.