First Amendment Newsflash 2/19-3/11

Welcome to First Amendment Newsflash, the First Amendment Law Review’s bi-weekly roundup of the latest in free expression and religious freedom news and commentary. Check here every other Sunday for a new edition! Need First Amendment news in the meantime? Follow FALR on Twitter and Facebook for regular updates.


Photo Credit: Courtesy of Mark Warner


Federal Court News

A federal judge suggested that President Trump mute rather than block his critics on Twitter as a settlement to resolve a First Amendment lawsuit.

An Iowa man who criticized his hometown over a foul odor sued the city to prevent the city from making legal threats or taking any action to force him to remove his criticisms online.

An organizer of last summer’s Charlottesville white nationalist rally is suing the city over its denial of his request to host an anniversary event.

Conspiracy theorist Alex Jones argues that his use of the Pepe the Frog cartoon is political speech protected by the First Amendment after the original cartoonist sued the website Infowars for selling a poster copying the character.

The Satanic Temple sued an Arizona city accusing its officials of violating the group’s free speech rights after being denied an opportunity to give the opening prayer at a city council meeting.

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Banned for 140 Characters or Less

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By Wil Safrit, Staff Member (Vol. 16)

Every day, Americans tweet at their respective politicians. Some tweets may be messages of support, while others could be suggestions on how to  better represent the interests of the politicians’ constituents. Some representatives have decided to tune out criticism by simply blocking those that disagree with them—for example: President Trump, Maryland Governor Larry Hogan, and Kentucky Governor Matt Bevin. However, this raises the question: if politicians cannot silence their opponents at rallies, should they be able to silence them online?

Proponents of the latter view argue that politicians may not  ban individuals from their respective social media pages because Twitter and Facebook are public forums that afford all the right to be heard and to communicate their opinions. Therefore, a ban would violate their First Amendment rights.

The Public Forum Doctrine and Social Media

A public forum has traditionally been defined as a place that “[has] immemorially been held in trust for the use of the public and, time out of mind, [has] been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Places such as parks, streets, or other public areas are places of free assembly and discussion with which the government may not interfere. However, the Supreme Court has not yet extended this definition to non-physical locations, which include the Internet. This criteria applies only to traditional public forums. Although social media profiles would not fit the narrow definition of traditional public forums, the Court could designate them as limited public forums.

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The End of Whistleblowing in North Carolina? A Brief Examination of North Carolina’s Property Protection Act

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By Roy Jacobs, Staff Member (Vol. 16)

These rats were nuisances, and the packers would put poisoned bread out for them; they would die, and then rats, bread, and meat would go into the hoppers together.  Upton Sinclair, The Jungle

These were the stakes when Upton Sinclair, after weeks of undercover research in the meatpacking industry, published The Jungle in 1906. The descriptions of unsanitary working conditions and animal cruelty inspired the passage of legislation relating to food quality and production. Over a century later, activists still model undercover investigations after this blueprint. While advanced technology has made documenting the conditions on factory farms easier, potential whistleblowers in the U.S. must now worry about violating “Ag-Gag” laws.

What is an Ag-Gag law? Imagine you are an animal rights activist who secures employment on a dairy farm in order to uncover any animal abuse that may be committed there. You do not reveal your affiliation because the farm would not hire you otherwise, and it will not matter if you do not uncover any abuse. While there, some of your co-workers put a chain around a cow’s neck and drag the cow across a concrete floor using a tractor. You record a video of the incident and release it, hoping it will at least result in criminal charges for those who perpetrated the abuse and in well-deserved negative publicity for the industry. However, you discover that you have been charged with the crime of “Interference with Agricultural Production” because you gained access to the facility through misrepresentation and failed to secure the owner’s consent before recording on the premises.

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First Amendment Newsflash 2/5-2/18

Welcome to First Amendment Newsflash, the First Amendment Law Review’s bi-weekly roundup of the latest in free expression and religious freedom news and commentary. Check here every other Sunday for a new edition! Need First Amendment news in the meantime? Follow FALR on Twitter and Facebook for regular updates.2000px-Simpsons_tv_icon.svg

Photo Credit: Courtesy of Sakurambo


Federal Court News

The Second Circuit threw out a free speech challenge by Citizens United to New York’s requirement that registered charities disclose their donors annually.

The organizers of the Charlottesville rally plan to use a First Amendment defense to a lawsuit alleging that the rally organizers incited violence and are legally responsible for the 30 injuries and one death that occurred.

A brother and sister convicted of cyberstalking linked to the brother’s ex-wife’s death allege that their freedom of speech rights were violated.

A high school senior filed suit stating his First Amendment rights were violated after he was told not to interrupt the city mayor’s question and answer session at his high school.

Arguments have begun in the ACLU of San Diego’s appeal to the Ninth Circuit to rule that a U.S. Customs and Border Protection policy prohibiting photographers at border ports without permission violates the First Amendment.

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The Price of Free Speech: A Brief Examination of Expressions Hair Design et al. v. Schneiderman

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Photo Credit: Courtesy of Alpha Stock Images

By Samantha Aparicio, Staff Member (Vol. 16)

Modern technology and the use of credit cards has created a world where one can make immediate purchases and have access to accounts without the former delay of checks, banks, or cash. This need for immediate gratification has allowed for a monopoly of credit card issuers who can capitalize on customers’ and merchants’ reliance. Most people view credit cards as a necessity to function in our present economy; a tool that creates an ease of access when making purchasing decisions. Does this ease of access have an expense? Who pays the price? In New York, the merchants pay the ultimate price for this immediate gratification. In order for merchants to utilize customers’ credit cards for payment, they must have appropriate technology, and company-approved charging methods, in order to access customers’ funds.  However, the Supreme Court has implied that merchants’ First Amendment freedom of speech rights are implicated when states attempt to control how merchants price their goods.

In order to accommodate for the use of credit cards, merchants have two options available to them. They may use an increased price, “credit surcharge price,” that accommodates for the fees that merchants must pay credit card issuers in exchange for the ability to use credit cards as a payment method, or the merchant may offer a discount for the use of cash. Only ten states ban the use of credit card surcharge prices, including New York.

New York General Business Law § 518 provides that “[n]o seller in any sales transaction may impose a surcharge on a holder who elects to use a credit card in lieu of payment by cash, check, or similar means.” Essentially, the New York law prevents retailers from using this surcharge method to increase the retail price of a product for purchases made with a credit card. However, there are no laws that prevent merchants from utilizing the second of the merchant options: providing a discounted price for customers paying with cash. The penalty for using surcharges and violating this law ranges from a possible $500 fine to a potential one-year sentence in prison.

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First Amendment Newsflash 1/22-2/4

Welcome to First Amendment Newsflash, the First Amendment Law Review’s bi-weekly roundup of the latest in free expression and religious freedom news and commentary. Check here every other Sunday for a new edition! Need First Amendment news in the meantime? Follow FALR on Twitter and Facebook for regular updates.


Photo Credit: Courtesy of Charlie Nguyen


Federal Court News

A federal judge refused to block the removal of a Confederate monument on courthouse grounds in north Louisiana after the United Daughters of the Confederacy filed a First Amendment claim.

The Trump administration filed court documents supporting a lawsuit against the University of California, Berkley accusing the school of violating the First Amendment by restricting campus speakers with conservative viewpoints.

A federal judge threw out a defamation lawsuit over the “hate group” label that dozens of nonprofit groups received on a website database of U.S. charities.

A federal judge ordered the University of Iowa to temporarily reinstate a conservative Christian organization as a registered student organization after the university revoked campus registration when the group denied a leadership position to a gay student who would not affirm a statement of faith rejecting homosexuality.

The parties involved in a federal lawsuit, claiming a woman’s First Amendment rights were violated after a police officer grabbed her phone and deleted a photo she took of her son in the officer’s vehicle, reached a settlement.

A federal judge temporarily blocked a Kansas law prohibiting state contractors from participating in boycotts against Israel, ruling that the state law violates state contractors free speech rights.

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Rowan County Commissioner Prayer: Coercive or Tradition?

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Photo Credit: Courtesy of Harley Pebley

By Sabrina Heck, Staff Member (Vol. 16)

Imagine sitting in a small-town community meeting, at which you make decisions about traffic, school zones, and other issues that impact your community. You have a keen interest in being present, and you want your voice and concerns to be heard. But you do not believe in God. You do not pray. As the rest of the room bows their head in prayer before the discussion of a proposed traffic light, you look straight ahead, eyes open. You hear a scoff to your right, small and subtle. It is enough. It is enough to make you feel uncomfortable. Enough to make you wish you had bowed your head and closed your eyes in mock prayer not to be out-casted, judged, and belittled by members of your community. You are no longer a peer but a civilian that is tolerated. Your opinions are tainted in their eyes. What you have to say about the stoplight, however insightful, is repudiated by this non-secular community. Why? Because whether or not you believe in “God” obviously correlates to your ability to determine what the timing of the signals at the new stoplight should be.

Until 2013, the Rowan County Board of Commissioners opened community meetings with Christian prayer. Then, the ACLU of North Carolina intervened. The ACLU filed a lawsuit challenging the commissioners’ coercive prayer practice in March 2013 on behalf of three Rowan County residents. The ACLU argued that the commissioner’s practice and the invitation to prayer before public community meetings is a violation of the Establishment Clause. So far, this argument has succeeded. The district court held the prayer to be unconstitutional. The case then went to a three-judge panel of the Fourth Circuit. The panel reversed the district court’s decision, but the full court granted a rehearing en banc and reversed the holding of the panel in a 10-5 decision.

The decision by the Fourth Circuit that Rowan County’s prayer practice before community meetings is unconstitutional relies heavily on the fact that Rowan County lawmakers lead the prayer. This, combined with the county leaders consistently invoking only one faith, Christianity, and requesting that members participate shows a tendency that the community preferred Christianity over all other religions. In making their decision, the judges looked to prayer by former commissioner Jon Barber in which he said the “one way to salvation is Jesus Christ,” as well as a prayer by former commissioner Carl Ford in which he prayed “that citizens of Rowan County put Jesus Christ first.”

ACLU of North Carolina Legal Director Chris Brook stated that “[t]his ruling is a great victory for the rights of all residents to participate in their local government without fearing discrimination or being forced to join in prayers that go against their beliefs.” Unfortunately, this victory for the ACLU is not going unchallenged. The decision by the Fourth Circuit has not deterred county commissioners from trying to prevail on their argument that the practice of prayer before meetings is a rooted tradition. The commissioners voted 5-0 in favor of appealing the case to the U.S. Supreme Court.

If the Supreme Court decides to hear the case, their decision as to the constitutionality of Rowan County’s prayer practice may be closer than one would initially think. In 2014, the Supreme Court decided in Town of Greece v. Galloway that the town’s practice of opening meetings with prayer does not violate the Establishment Clause. The case was decided 5-4 and reversed the Second Circuit’s holding that, “some aspects of the prayer program, viewed in their totality by a reasonable observer, conveyed the message that Greece was endorsing Christianity.” Justice Kennedy authored the opinion and wrote that “[t]he town of Greece does not violate the First Amendment by opening its meetings with prayer that comports with our tradition and does not coerce participation by nonadherents.”

The language of Kennedy’s opinion in Galloway mirrors the arguments of the lawyers for Rowan county who have stated the prayers neither “threaten damnation nor preach conversion,” and have pointed to a tradition of legislative prayers going back to a time before the founding of the republic. The Rowan case is distinguishable from the Galloway case in that government officials led the prayers, not volunteer chaplains. If the case is taken to the Supreme Court, the lawyers for Rowan County may try to rely upon Marsh v. Chambers. In Marsh, the Supreme Court ruled that the Nebraska Legislature’s practice of opening its sessions with chaplain-led prayer is constitutional for it is a practice that has continued without interruption for approximately 200 years. The Court stated that “[w]hile historical patterns, standing alone, cannot justify contemporary violations of constitutional guarantees, historical evidence in the context of this case sheds light not only on what the drafters of the First Amendment intended the Establishment Clause to mean but also on how they thought that Clause applied to the chaplaincy practice authorized by the First Congress.”

The Rowan case is notably dissimilar to Marsh in two ways; (1) Rowan county prayer is led by lawmakers and (2) It is not clear that the practice of prayer is a longstanding tradition rooted in history. Rowan County Commissioners most likely understand that this difference significantly hurts their case for after the district court’s ruling that the prayer is unconstitutional the commission invited a volunteer chaplain to lead the prayers.

Judge Wilkinson’s majority opinion for the Rowan case emphasizes that “Marsh and Town of Greece do not settle whether Rowan County’s prayer practice is constitutional. Those decisions did not concern lawmaker-led prayer, nor did they involve the other unusual aspects of the county’s prayer practice. And certainly, did not address the confluence of these elements.” Because of this inability to rely on prior cases concerning prayer the Supreme Court may hear the case, but if they decline to review the Commissioner’s appeal than the holding of the Fourth Circuit will stand.

One should feel open and free to participate in community activities and discussions. The decision of the Fourth Circuit gives members of the community who do not associate themselves with Christianity or any other religion the ability to have their opinions heard and heeded without a veil of disdain.