From the Austin American-Statesman: Texas conservatives launch next fight on religious liberty

More evidence of Texas' traditionalistic political culture. This sets up a constitutional conflict: The First Amendment vs the Equal Protection Clause.

- Click here for the article.

Conservative Republican senators and representatives Wednesday unveiled a dozen bills designed to protect religious practice, including efforts to allow Christians to opt out of serving gay couples if same-sex marriage violates their beliefs.

Unlike the 2015 session, when efforts to approve broad constitutional amendments to protect religious practice fell far short, the bills filed thus far focus on specific issues and were the result of a concerted effort to “make sure that religious liberty bills are at the forefront this session,” said state Rep. Matt Krause, R-Fort Worth.

“Religious liberties are the bedrock of what our state and our country were built on, and we want to make sure we are protecting those, preserving those and advancing those liberties as much as possible,” Krause said during a Capitol news conference.

Many of the bills have already attracted spirited opposition from critics who say they would authorize state-sanctioned discrimination.

“Religious liberty protections allow us to worship freely and to be vocal about what our religious beliefs are,” said Chuck Smith with Equality Texas. “But religious liberty does not allow me to exempt myself from laws or allow me to use my religious beliefs against other people. That’s discrimination, that’s not religious liberty.”

“There’s no discrimination here,” Krause said. “We’re just trying to open it up to where people can continue to work and do what they love to do in the way that they want to do it.”

One of the farthest reaching proposals, known as the First Amendment Defense Act, would not permit state or local governments to penalize people for acting on religious beliefs opposing gay marriage.

From RT: Shooting the messenger: Citizen journalists jailed for recording police

This is a little scary. I imagine a Supreme Court case is likely in the near future.

- Click here for the article.

Police practices are under fire as more and more recordings of excessive force and racist behavior surface. Some police departments have responded by trying to work with communities to regain trust lost, while others try to silence whistle blowers.

The availability of smartphones and cameras has empowered citizens to become guerrilla journalists who feel protected by the First Amendment. However, many have been shocked to discover revealing police misconduct may result in being targeted and harassed by law enforcement.

Filmmakers David Felix Sutcliffe and Laura Poitras have asked the documentary community to show their solidarity for civilian journalists by signing a petition. So far, the petition has at least 306 names, including multiple Academy Award-winning and nominated documentarians.

The Electronic Frontier Foundation has endorsed their petition, saying in a statement, “Arrests of grassroots journalists who record police activities implicate not only the 1st and 14th Amendments to the U.S. Constitution, but also the very legitimacy of our legal system, which grounds its claim to power in impartiality. Yet, around the country, the law has subjected to penalties people pursuing constitutionally protected activities that enhance transparency, while turning a blind eye to the violence prompting residents to place themselves at risk.”

The petition asks the Department of Justice (DOJ) to investigate the arrests of civilian journalists who film police actions. This shouldn’t be a difficult request, because the DOJ has acknowledged it as a problem in prior investigations.

In the DOJ’s 2015 report on the Ferguson Police Department (FPD), they wrote, “FPD officers also routinely infringe on the public’s First Amendment rights by preventing people from recording their activities,” and “the federal courts of appeal have held that the First Amendment ‘unambiguously’ establishes a constitutional right to videotape police activities.”

Despite this, citizens who record police often find themselves in the crosshairs. For example, the day after Chris LeDay filmed the death of Alton Sterling, he was detained after police told him that he “fit the description” of someone wanted on battery charges. He would end up spending the night in jail for unpaid fines, Complex reported.

Helpful Hints: 5 Things to Know Before Recording the Police

Don't say I'm not here to help. A proposal was made - and rescinded - in the legislature to increase punishment for recording the police.

- Click here for the article.

Cutting to the chase:

1. You Have a First Amendment Right to Record
2. Can the Officer Delete Your Pics or Video? No.
3. You Cannot Break Laws While Filming
4. Are You Violating Wiretapping Laws?
5. Know When to Walk Away or Stop

Walker v. Texas Division, Sons of Confederate Veterans, Inc.

Oral arguments are scheduled Monday in the Supreme Court about whether Texas must create specialty license plates with the confederate flag if they are requested to do so.

- From the Christian Science Monitor: 

The United States Supreme Court on Monday is set to hear a dispute over whether Texas has the authority to bar the issuance of a specialty license plate featuring the Confederate battle flag.

The controversy arose in 2009 after the group Sons of Confederate Veterans asked the Texas Motor Vehicles Board to approve a specialty license plate that prominently displayed the Confederate flag.

In the century and a half since the Civil War, the Confederate battle flag has come to represent a symbol of Southern heritage for some. But for many others, including African-Americans, the flag is viewed as a symbol of fear, intimidation, and oppression.

Cognizant of this reaction, the Motor Vehicles Board voted to reject the license plate.
The Sons of Confederate Veterans filed a lawsuit, charging that the Texas board – which has approved messages conveyed by 350 other specialty license plates – had engaged in unconstitutional viewpoint discrimination in violation of the First Amendment’s free speech clause.

- From ScotusBlog:

If a state is forbidden by the Constitution to dictate the message that private citizens must put on their license plates, is it also forbidden to veto a message that citizens would prefer? That has been a lingering First Amendment question for nearly four decades, but the Supreme Court now seems prepared to answer it. The answer depends, simply, on whether the voice of the license plate is that of the government, or of the motorist.

In the famous decision in 1977 in Wooley v. Maynard, the Supreme Court treated license plate messages as a form of private speech on private property, but did not rule exactly that. Presuming it to be private speech, the Court said motorists could not be compelled to carry New Hampshire’s preferred message, the state motto, “Live Free or Die.” That mandate was challenged by a driver of the Jehovah’s Witness faith.

Six years ago, the Court made clear, in the case of Pleasant Grove City v. Summum, that if the government is acting as the speaker in a public display (there, a monument in a public park in Utah), it has the right to pick a message it prefers and exclude others.

From the Atlantic: Corporations: Still Not People

The recent Supreme Court seems to disagree though. Norm Ornstein - a respected political commentator - critically discusses this trend. He does not see it as a positive development. The Hobby Lobby decision - in his eyes - was less about contraception and more about corporations acquiring power beyond that of individuals.

As the economy becomes more global, corporate interests are no longer tied into American interests.

- Click here for the article.

For many decades, corporations and corporate leaders took the long view and saw a strong American society as key to their own prosperity. But General Motors, in the global economy, is now a global company, even though it is still based in the U.S. and not yet tempted by inversion. Is what is good for a company with huge interests in dozens of countries necessarily good for America? Will it think first—or at all—about the prosperity and needs of the United States? Maybe—but can we say the same thing about "American" companies renouncing their corporate citizenship? When these companies get involved with politics—and you can be sure before long that the Supreme Court will extend the "speech rights" of corporations to include direct contributions to candidates—will they be thinking of America, or of what America can do to protect their interests in other countries? If the money comes from the "American" subsidiary of the foreign-owned company, will it only be reflecting the desires and interests of that American entity or will it reflect the interests of its parent? If a company with gambling interests in Las Vegas earns most of its money in Macau and gets involved deeply in American campaign finance, will it be most interested in promoting its interest in Macau—which might be counter to America's interest in its foreign relations with China?

When does a public prayer become an endorsement of a state religion?

The Supreme Court will try to make that determination in the Town of Greece v. Galloway. It heard oral arguments on the case this week.

The Issue: Whether the court of appeals erred in holding that a legislative prayer practice violates the Establishment Clause notwithstanding the absence of discrimination in the selection of prayer-givers or forbidden exploitation of the prayer opportunity.

The argument in plain english:

Since 1999, the town of Greece, New York, which is outside Rochester, has started its town council meetings with a prayer led by members of the local clergy or local residents. Today, in Town of Greece v. Galloway, the Court will hear oral arguments about whether the town’s prayers are constitutional, but its decision could have a wider impact on the law governing the intersection of church and state. Let’s talk about the case in Plain English. For the first eight years after the town started the prayers, all of the people who delivered them were Christian.

The case before the Court today was filed in 2007 by Susan Galloway, a town resident who is Jewish, and Linda Stephens, who is an atheist. They said that the repeated use of Christian prayers made them uncomfortable; in 2008, there were four non-Christian prayers.

. . . A lower court held that the town’s prayer practice violated the Constitution because, taken as a whole, it suggested that the government was endorsing Christianity. That court emphasized that most of the prayers were “uniquely Christian” – referring, for example, to “Jesus,” “Your Son,” or “the Holy Spirit.” And it wasn’t enough for the lower court that clergy from other religions had sometimes offered the prayer; it reasoned that the town had almost always only invited clergy from within the town itself, without making any real effort to let other religions know that they could participate, and it hadn’t reached out to recruit members of other faiths.

. . . Galloway and Stephens argue that the prayers are unconstitutional for two reasons. First, they effectively coerce the town’s residents to participate in the prayers. If you want to participate in local government – for example, when you are looking for a zoning change or trying to get a business permit – you will attend the town council meeting and feel obligated to join in the prayer. This is different from the prayers that the Court approved in Marsh, they reason, because there wasn’t any sign of coercion in that case: Nebraska citizens were just there to watch the proceedings, and legislators “were free to come and go with little comment.” Second, the prayers are “acceptable only to Christians.”

One suggestion was to craft a prayer acceptable to all religions, in oral arguments the court considered this argument, but the National Journal has doubts that is possible:

As part of the oral argument Wednesday, the justices wondered whether there could possibly be one prayer nondenominational enough to be cool with Christians, and, let's say, worshippers of Zeus. They were picking apart the argument of Douglas Laycock, a professor of law and religion at the University of Virginia, who said that prayers could be allowed if they were not sectarian.

"Well, if that is your argument, then you are really saying you can never have prayer at a town meeting," Justice Samuel Alito said. Laycock then tried to defend his position.

The exchange that follows highlights the central problem of the issue: How do you both allow public prayer and be all inclusive? The answer veers into the absurd, dissecting prayers into their least offensive and vaguest components, approving the ones that pass a sniff test, but still implicitly invoke God and therefore will offend someone, somewhere. Justice Antonin Scalia, the staunch Catholic, jumped in wondering whether such a prayer could make devil worshippers happy.

For the record, Lucien Greaves, the communications director of the Satanic Temple, says the answer is no.

"If the question is one of whether or not there can be one public prayer generalized enough to be all-inclusive to every religion, the answer is obviously no," he wrote me via email.

"The discussion regarding some type of all-inclusive public prayer naively assumes one type of religious construct (that of servitude and supernaturalism) while seemingly disregarding not only other religious conceptions, but the presence of those who don't wish to associate themselves with any type of religion whatsoever."

Testing the limits of ther free exercise of religion

It does protect a couple that denies medical treatment for a child in favor of prayer if the child dies as a result. We discussed similar cases earlier in 2305 when we covered the religious freedoms established in the Bill of Rights. Here's an example:

A couple serving probation for the 2009 death of their toddler after they turned to prayer instead of a doctor could face new charges now that another son has died.

Herbert and Catherine Schaible belong to a fundamentalist Christian church that believes in faith healing. They lost their 8-month-old son, Brandon, last week after he suffered from diarrhea and breathing problems for at least a week, and stopped eating. Four years ago, another son died from bacterial pneumonia

. . . A jury convicted the Schaibles of involuntary manslaughter in the January 2009 death of their 2-year-old son, Kent. The boy's symptoms had included coughing, congestion, crankiness and a loss of appetite. His parents said he was eating and drinking until the last day, and they had thought he was getting better.

The Schaibles were sentenced to 10 years' probation.

At a hearing Monday, a judge told the couple they had violated the terms of their probation, noting the Schaibles had told investigators that they prayed to God to make Brandon well instead of seeking medical attention.

"You did that once, and the consequences were tragic," Philadelphia Common Pleas Judge Benjamin Lerner said, according to the Philadelphia Daily News.

From the Atlantic: That Anti-Muhammad Film: It's Totally Protected by the 1st Amendment

A constitutional scholar argues that the film that seems to have sparked the unrest in the Middle East is constitutinally protected under the First Amendment's Free Speech Clause.

Here's an exerpt from an interview with him, his comments go hand in hand with general points we will be making about the court rules in cases involving uses of First Amendment freedoms that are judged offensive by some and lead to violent retaliation:

As people try to puzzle out whether there is any legal action possible against either the filmmaker or Terry Jones, two ideas keep coming up. One is that the film and the promotion of the film are protected speech, and one is that this has somehow crossed a line, and that either the film itself or Jones's promotion of it constitute something akin to that famous example of "yelling fire in a crowded theater." What's the line between protected speech, even hate speech, and speech that's not protected?


The relevant question is whether or not speech is an incitement to riot, or to produce any other imminent lawless action. Whether it incites violence is the central question -- and that means not just that the speech produces violence, but that the speaker intends it to.

Generally speaking, the rule is you can't be held liable for speech that moves other people to violence unless your speech is intended to producing violence and is likely to almost immediately produce it. That's the point of the familiar example of shouting "fire" in a crowded theater -- you're trying to cause a ruckus. But you can also see why this is not the best example. Sometimes there actually is a fire.

So intent is critical.
Yes. Imagine if somebody digs up a film, made in 1950, that portrays Arabs or Islam in a bad light. I'm sure there are a lot of them. Someone releases it online, and people see it and say it's insulting to Islam and then they riot. Even if someone released the film knowing that it would be likely to produce a riot, that doesn't mean the film was made with the intent of producing a riot.

Given that, it seems like the filmmaker is pretty clearly within his rights in making and releasing the film. But what about Terry Jones? He screened and publicized the trailer as part of a so-called "International Judge Muhammad Day."
The question is still whether Terry Jones is deliberately trying to incite a riot by promoting the speech at issue - and were his actions almost certain to have produced any resulting riot? The case is further complicated by the fact that the riots occur outside the United States. But let's assume that where the riots occur makes no difference. The question would be, are his actions directed to causing the riots?

Can you film the police?

Interesting topic raised in yesterday's 8am 2302. We were discussing how easy it is now to record things through cell phones and a student remarked that an officer who pulled her and a friend over got touchy when it occurred to him that they could be recording him.

Did they have the right to do so?

I mentioned that - as best I know - this is an unresolved issue. If I recall, yes they can be recorded, but no court has yet to defend that right. Police tend to consider recordings as interferences, and make arrests on that basis. It would be a great test case.

Any takers?

I have a standing policy that any student who starts a dispute that ends up in the Supreme Court gets an A for the class.

Here's a thought though. If you are indeed arrested for recording the police and taken to jail, the Supreme Court has ruled that you can be stripped searched even though what you did in no way demonstrates probable cause that you are a violent person. So might you be reluctant to do so now?

Here are more thoughtful comments on the issue:

- Reversing Big Brother: Videotaping and Recording On-Duty Police Officers.
- Your right to record

- Rochester Woman Arrested After Videotaping Police From Her Own Front Yard
- First Circuit Court of Appeals Rules that Citizens Can Videotape Police

- Growing Number of Prosecutions for Videotaping the Police
- But for (Deleted) Video

Is art covered by the First Amendment?

As 2301s look at freedom of speech and what it does and does not cover, what is it about art that makes it covered? A law article and a briefer discussion here touch on this question.

Just in case you don't have enough to read already.

The FDA, tobacco companies and free speech

NPR reports on a case to be argued in the DC appellate court today about whether Food and Drug Administration's requirement that graphic warnings be placed on cigarette packets violates the free speech rights of the companies.

A side thought. Opponents to Texas' abortion sonogram bill made the same - ultimately unsuccessful - point. What's the difference between the two, if any?

Is the right to petition threatened?

The author of "Reclaiming the Petition Clause: Seditious Libel, ‘Offensive’ Protest, and the Right to Petition the Government for a Redress of Grievances" (info in Amazon) thinks so:

EVERY four years, we witness the spectacle of the presidential nominating conventions. And every four years, host cities, party leaders and police officials devise ever more creative ways of distancing protesters from the politicians, delegates and journalists attending these stage-managed affairs.

The goal is to trivialize and isolate dissenting speech without actually banning protest outright. One result is something of a Potemkin village: government proclaims its full commitment to respecting the First Amendment without actually permitting any observable dissent to take place near the convention.

Tampa, Fla., which will host the Republicans from Aug. 27 to 30, and Charlotte, N.C., which will host the Democrats from Sept. 3 to 7, are already following the trend. Charlotte has adopted an ordinance that expands the power of the local police to detain, search and arrest persons in its downtown core. (The Charlotte ordinance also bans camping on city-owned property, a clear response to the Occupy movement.) Tampa is also considering new municipal laws to limit, and in some instances flatly prohibit, downtown protest activity.

Citizens generally have a right to use public streets, sidewalks and parks for expressive activity — unless the government has a substantial reason for requiring expressive activity to take place somewhere else or at another time. Because the rights of speech, assembly and association do not include a right to communicate a particular message to a particular audience, the government’s willingness to let would-be protesters speak somewhere else, some other time, has usually been seen by courts as satisfying the First Amendment.

. . . Unfortunately, the Supreme Court has not accorded the Petition Clause much legal significance. When litigants have pressed Petition Clause claims, the justices have noted that all First Amendment rights are “cut from the same cloth” and thus “are inseparable.” However, in Borough of Duryea v. Guarnieri, a Petition Clause case decided last year, Justice Anthony M. Kennedy wrote that there could be cases “where the special concerns of the Petition Clause would provide a sound basis for a distinct analysis” and where the rights of petition and free speech “might differ in emphasis and formulation.”

This suggests that the court could be sympathetic to carefully devised arguments focused on the right to petition. Officials in Charlotte and Tampa should not reflexively equate dissent with criminality (or domestic terrorism), nor should they have to be sued to do the right thing.

I strongly advise 2301 students to read this op-ed. It's worth a class discussion. The right to petition for grievances has a long and important history which led to the establishment of the U.S. as we know it. It may well be the right that all other rights rest on. If this right is threatened, what else is threatened?

Are Fleeting Expletives Protected under the First Amendment?

We will soon find out. The Supreme Court heard arguments today in FCC v Fox about whether the FCC can punish broadcasters for fleeting expletives - or brief nudity, or whether the rules allowing for such punishment are either a violation of free speech, or too vague.

From the USA Today:

The case arises from Federal Communications Commission findings against expletives uttered by Cher and by Nicole Richie at Fox Television's Billboard Awards and a brief shot of a woman's buttocks on ABC's NYPD Blue.

Broadcasters say the FCC policy is unconstitutionally vague and violates free speech rights. Fox Television Stations, going further than ABC in its arguments, has asked the high court to abandon a longtime rule that allows more government regulation of broadcast, compared with cable TV, because of the scarcity of the airwaves and the pervasiveness of broadcast TV and radio.

Are the Occupy Wal Street Protests Covered by the First Amendment?

From Slate, a contemplation of the conflict between First Amendment rights to assemble and protest and the rights of government to secure health and safety:

You cannot fault Bloomberg for his goals; they embrace the fundamental tension at the heart of the First Amendment and public protest. Case law dealt the Occupy movement some fairly heavy cards. Their speech, on matters of core political concerns, sits at the top of the pantheon of what the First Amendment protects. And while Zuccotti Park is technically private, it functions as a public park, and was dedicated under local zoning laws for round-the-clock public enjoyment in 1968. Public parks enjoy an exalted status in the geography of the First Amendment, enshrined in the sort of language men like the first Justice Roberts used to conjure images of the Periclean agora:

Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.

But practice First Amendment law long enough, and you learn that for every uplifting paragraph like that, there are a thousand cases bending an abstract right to the prosaic realities of protest.

Is the "Stolen Valor Act" constitutional?

Thanks to an intrepid student.

The Supreme Court will rule on whether lying about receiving medals for military medals is constitutionally protected free speech. The case is USA v. Xavier Alvarez:

The Supreme Court will decide whether a law making it a crime to lie about having received military medals is constitutional.

The justices said Monday they will consider the validity of the Stolen Valor Act, which passed Congress with overwhelming support in 2006. The federal appeals court in California struck down the law on free speech grounds and another appeals court in Colorado is considering a separate case.

The Obama administration is arguing that the law is reasonable because it only applies to instances in which the speaker intends to portray himself as a medal recipient. Previous high court rulings also have limited First Amendment protection for false statements.

- Wikipedia: Stolen Valor Act.
- ScotusBlog: Another test of the First Amendment.
- Scotus Blog: United States v. Alvarez.

Religious Liberty v. Civil Rights

From the National Law Journal, another looming Supreme Court case, and a great illustration of the conflict between civil liberties and civil rights:

On Oct. 5, the U.S. Supreme Court will hear arguments in a very significant case that pits a Lutheran parochial school's assertion of First Amendment rights against the claims of the Equal Employment Opportunity Commission and a fired teacher, Cheryl Perich, of violations of the Americans With Disabilities Act (ADA). The high profile of this suit, Hosanna-Tabor Evan­gelical Lutheran Church and School v. EEOC, is reflected in interest by third parties — 31 amicus briefs have been filed — and by the church's retention of Professor Douglas Laycock of the University of Virginia School of Law, a leading authority on religious liberty, to represent it. . . .

- From Scotus Blog: Hosanna-Tabor Evan­gelical Lutheran Church and School v. EEOC.

From The Monkey Cage: What John Galliano Can Teach Americans about Free Speech

This regards a case in France where a fashion designer was convicted for uttering an anti-Semitic insult. This is not illegal in this country - so the freedom of speech include the right to be racist and makes racist comments?

From Floyd Abrams: Flash Mob Violence and the Constitution

This article is behind a pay wall in the WSJ, but the Atlantic has a summary, which I've copied below. Floyd Abrams is a noted First Amendment Lawyer and he's concerned with the way some cities are dealing with a new phenomenon made possible by social media: flash mob violence. Recall that the recent revolutions in the Middle East and elsewhere have been made possible by social media. It's impact is not yet fully realized. Does government have the right to restrict its use since some might use it to organize criminal activity?

From the Atlantic Five:

Floyd Abrams on flash mobs and First Amendment rights Flash mobs--large groups that assemble by means of text message--sometimes act dangerously or lawlessly. "In doing so, they have raised difficult policy and legal issues, including questions relating to the role of the First Amendment," writes lawyer and author Floyd Abrams in The Wall Street Journal. Recently, mobs have beaten passersby and robbed stores. Official responses to the trend vary. In Cleveland, the city council passed a law banning "improper use of social media to violate ordinances on disorderly conduct, public intoxication and unlawful congregation by promoting illegal flash mob activity." During the British riots, David Cameron considered censoring social network sites. "But by focusing on the newer technological means of communication and not on the illegal conduct and its causes, they miss the point that it is not criminal to meet, let alone to plan to do so--but to engage in criminal conduct." The Cleveland mayor realized this and vetoed the proposed law. But the legality can become ambiguous. In San Francisco, the BART public transit system heard of a planned disruption to their service by groups organizing themselves by cell phone, so they disabled the underground fiber optic network. The plan worked, but the ACLU and others criticized the group for violating the liberties of all BART passengers. "As the proposed Cleveland statute illustrates, barring all people from engaging in constitutionally protected speech, even for a limited time in a limited space, raises troubling First Amendment issues," writes Abrams. "There will be more."

Texas Tribune: High Court Approves "Pole Tax" on Strip Clubs

A story that touches on the first amendment, checks and balances, and the judicial system:

The Texas Supreme Court has unanimously ruled that a $5-per-patron tax on strips clubs does not violate the First Amendment, adding the latest chapter to a four-year legal battle.

After the 2007 Legislature passed the law known as the Sexually Oriented Business Fee Act — or the "pole tax" in the vernacular — strip club owners challenged the fee in court. They argued it violated their freedom of expression under the First Amendment.

But the court today disagreed, saying that the fee was directed not at the expression of nude dancing, but at the "secondary effects of nude dancing when alcohol is being consumed." Adult entertainment businesses can "avoid the fee altogether simply by not allowing alcohol to be consumed," according to the decision written by Justice Nathan Hecht.

Judge tosses atheists' lawsuit over Perry rally

If you read this Chron story, you'll notice that the judge did not rule on the merit of the argument - is it in fact a violation of church and state for the governor to be involved and promoting this event - but the fact that the people who brought the suit lacked standing to do so in the state of Texas. The actual argument regarding whether this is or isn't problematic may not be resolved, but here's a link to the group's complaint.