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First Amendment in the News (Aug-Oct 2023)

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First Amendment News

(Aug-Oct 2023)

Trump Contends Attempts to Bar Him from 2024 Ballot Under ‘Insurrection’ Clause Unconstitutional

Recently, groups of voters in the state of Colorado have filed a lawsuit which seeks to block state officials from adding former President Donald Trump’s name to the primary ballot. One of the main arguments for this push is that Trump violated the 14th Amendment, specifically Section III, which states that “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof”. The lawsuit poses the question of whether or not the 14th Amendment applies to ballot access or candidate disqualification from an office seat. It is also unclear at this time who would hold the power to determine such a disqualification.

For more information see: Trump argues First Amendment protects him from ‘insurrection’ cases aimed at keeping him off 2024 ballots | PBS NewsHour

Judges Find CDC and FBI Likely Guilty of Coercion

In a recent ruling by the 5th Circuit, a three-judge panel found that contacts with tech companies by officials from the White House, the surgeon general’s office, the CDC and the FBI likely amounted to coercion. This alleged coercion follows the Biden administration’s push toward social media companies to moderate COVID-19 vaccine content. The Biden administration has responded by saying that the intent of the tech moderation was to protect Americans from vaccine misinformation. The Department of Justice is currently reviewing the 5th Circuit’s decision. For more information see: 5th Circuit finds Biden White House, CDC likely violated First Amendment

Court Rules in Pornhub’s Favor in Finding Texas Age-Verification Law Violates First Amendment

The popular adult website, Pornhub.com, and several other adult entertainment groups have filed a lawsuit against the state of Texas. The state has announced a plan to enforce an age verification law that would require pornographic websites to display a warning from the Texas Health & Human Services on their own sites in a text font of 14pt or larger. Filed by the Free Speech Coalition, the appellants in this case alleged that the Texas law is a violation of their First Amendment rights under the U.S. Constitution, as well as the Federal Communications Decency Act. The state law was scheduled to take effect on September 1 of 2023 but has since been blocked by U.S. District Judge Ezra who cited issues of privacy and compelled speech as main concerns. For more information see: Texas Age-Verification Porn Law Violates First Amendment, Judge Rules

University of North Texas Professor’s Retaliation Affirmed by Fifth Circuit      

Recently, the Fifth Circuit has affirmed that Dr. Timothy Jackson, a music theory professor at the University of North Texas, may pursue First Amendment retaliation claims against the public institution after he was removed as the editor of an academic journal. The school’s justification for his removal was that he published an article that defended a theorist against charges of racism. In his February 2023, preliminary win, the Court ruled that it would deny the university’s motion to dismiss Jackson’s lawsuit against them. District Judge Amos L. Mazzant found that Jackson successfully showed a plausible First Amendment violation. The Court stated that “given the relaxed standing requirements in First Amendment cases, the Plaintiff has established a cognizable injury. The plaintiff has been de facto removed from the Journal he founded and therefore cannot engage in the speech he wishes to express.” For more information see: First Amendment | Courthouse News Service   

Police Raid on Newspaper

Law enforcement officers executed a search warrant at the office of Marion County Records, a prominent local newspaper in Marion, Kansas. During the raid, officers seized personal cell phones and computers from record reporters among other items as the paper’s publisher’s home was searched as well. The raid was prompted based on speculation that Marion County Records was violating identity theft laws when searching the state database with obtainable information on a recent arrest. This information includes a person’s name, date of birth, and address. According to the Kansas Department of Revenue, searching the state database with this information is legal. No computer crimes were committed, which disproved the initial speculations from Marion Chief of Police. The raid violated the right of “all persons” to “freely speak, write or publish their sentiments on all subjects, being responsible for the abuse of such rights” written in the Kansas constitution. The seized items were returned and any copies made were ordered by the court to be destroyed. However, law enforcement officers still implemented their status to overpower First Amendment rights to acquire the sources in the first place. For more information see: Editorial: Raiding the First Amendment

Texas College Campus Drag Show Cancellation

A federal judge has ruled in favor of the president of West Texas A&M University (WTAMU) in a controversial case involving the cancellation of a campus drag show. The dispute began in March when students sued WTAMU President Walter Wendler for violating their free speech rights by banning a fundraiser featuring drag performers. The campus drag show was aimed to raise money on campus for The Trevor Project, a nonprofit organization focusing on mental health awareness in the LGBTQ+ community. Students claimed that drag performances are protected by the First Amendment because they are “expressive conduct.” However, the students’ definition failed to meet the required standards for a campus case regarding Free Speech. The university argued that the cancellation was rooted in the interest of protecting children and their well-being and was not a violation of the plaintiff’s constitutional rights. The university president acted as a government official authorizing the cancellation, but advocates for LGBTQ+ rights continue to argue that the drag performance cancellation unfairly targets the community. For more information see: Texas Judge Side with West A&M University President Who Canceled Campus Drag Show

NC Only Black Female Supreme Court Justice Sues Commission

State Supreme Court Justice Antia Earls, the only Black woman on North Carolina’s highest court, is suing North Carolina’s Judicial Oversight Board for violating her First Amendment rights by investigating her for public criticism of the judicial branch. Earls expressed to a legal news publication, Law 360, that North Carolina’s court system lacks in diversity and inclusion efforts. According to Earls, “We have so few people of color argue, but in one case there was a Black woman who argued in front of us and I felt like she was being attacked unfairly, not allowed to answer the question, interrupted.” The commission led by Republican Court of Appeals Judges is taking Earls public comments and is looking into a violation of confidentiality rules, while Earls is asking a federal court judge to block the investigation from proceeding. In Earls’ lawsuit, her attorneys have written that the commission is misinterpreting the conduct code in an effort to silence Earls. For more information see: NC’s only Black female Supreme Court justice sues commission over First Amendment Issue

Facebook Joke Protected by First Amendment

In March 2020, near the beginning of the global COVID-19 pandemic, Waylon Bailey posted a joke on Facebook which led to police arresting him at gunpoint. The Facebook post was a message using all capital letters, emojis, and hashtags to claim that the local deputy office has given an order to “shoot the infected.” Bailey ends the post with the hashtag #weneedyoubradpitt, a reference to the zombie movie “World War Z.” The interactions to the Facebook post conveyed an understanding of the joke Bailey intended with his upload. There were also no calls to the sheriff’s office to report any threats of violence. It was the sheriff’s themselves that saw the post and decided to take action. Bailey was not asked to take the post down and there was no warrant made for the arrest. The sheriff’s used the post to arrest Bailey with drawn guns on a terrorism statute. After charges were dropped by the district attorney, Bailey teamed up with the Institute for Justice to appeal. Bailey’s post was found to not intend imminent lawless action with his reference to Brad Pitt’s movie, and the joke lacked any believability for a “true threat” because of the excessive hashtags and emojis used. Waylon Bailey’s Facebook post was intended as a joke, humor that is protected by the First Amendment. For more information see: Court Says Facebook Joke Is Protected By The First Amendment

District Accused of Violating Teachers First Amendments Rights Following Asbestos Protest

On August 18th, 2023, three Philadelphia school teachers filed a class action lawsuit against the School District of Philadelphia, claiming that the district violated their First Amendment rights after they protested against asbestos in the school. Asbestos is a naturally occurring fibrous material known to be fire resistant. Many buildings built before 1980 were built with asbestos but upon the discovery of negative health effects, its use in buildings has been limited in the United States. According to the lawsuit, the latest AHERA (Asbestos Hazard Emergency Response Act) report published in the 2018-2019 school year for the Julia R. Masterman Laboratory and Demonstration School identified over 100 “confirmed” or “assumed” sources of asbestos in the building. The complaint alleges that the school district did not properly inform teachers and parents about asbestos remediation efforts and the potential danger of asbestos at the school. As a result of these concerns, current teachers Ethan Tannen and Carolyn Gray at Masterman, alongside retired teacher Karen Celli, assembled their workstations outdoors on the patio of the school. The lawsuit claims that after this act of protest, the school docked their pay for unauthorized absences on August 26th and 27th. The three educators are seeking compensation, plus interest, for financial damages as a result of lost wages and expungement of their employment records from the school district’s disciplinary actions. For more information see: Philadelphia teachers sue district over First Amendment rights violations after asbestos protests

The First Amendment Used as Tool to Fight California Gun and Web Safety Laws

A pair of state laws in California aimed at protecting children from gun advertisements and predators online have recently been blocked by separate federal court rulings. On September 13, the San Francisco-based U.S. Court of Appeals for the Ninth Circuit blocked enforcement of the state’s ban on any firearm advertisement that could potentially appear enticing to minors, under the belief that doing so would violate free speech. Five days later in San Jose, U.S. District Judge Beth Labson Freeman blocked the state’s first-in-the-nation law that would have required children to be protected from all online products and services they could potentially have access to. Freeman’s ruling is in contrast to the California Age-Appropriate Design Code Act, a law that requires platforms such as Tik Tok, Youtube, Instagram, and online video gaming sites to boost privacy and safety protections for teens and children, as well as limiting the amount of information that is collected. The law requires online services to enact age authentication so they can distinguish children from adults. The tech trade group NetChoice, whose members include Meta, Google, and ByteDance, have sued to block the law scheduled to go into effect July 2023.

The blockage of the proposed state laws and the passage of the California Age- Appropriate Design Code Act have resulted in clashing opinions between corporations and government officials. Some believe that the passage of laws such as the California Age-Appropriate Design Act have negative consequences on free speech, claiming that such restrictions are in violation of the First Amendment. On the other hand, some believe that these laws align with the state’s “compelling interest” to keep children safe online and to protect them from gun violence. For more information see: California Gun, Web Safety Laws Colliding with First Amendment

Kansas Supreme Court on Wichita’s “Noisy Conduct” Ban

In July 2020, Gabrielle Griffie was convicted of unlawful assembly after leading a protest against police brutality through the streets of Wichita. Griffie, who was the executive director of the activist group Project Justice ICT at the time,  led 40 to 60 protesters to the federal courthouse chanting, “no justice, no peace” and “Black lives matter”. She then spoke to the crowd using a megaphone. The city of Wichita claimed it could charge her with unlawful assembly for organizing a group with the intent of engaging in disorderly conduct, arguing that noisy conduct, which falls under the disorderly conduct ordiance, could alarm or upset others. Griffie appealed her conviction and three years after her arrest, the case has made it to the Kansas Supreme Court. She asked the court to strike down the “noisy conduct” portion of Wichita’s ordinance.

On September 12, 2023, Griffie’s lawyer argued that the ordinance was so broad that anything, even political speech protected by the First Amendment, could qualify as disorderly conduct. During legal briefs and oral arguments, attorneys claimed that the ordinance could deter free speech in two ways– if the ordinance was overbroad and if it had a chilling effect. A law is considered too broad when its sweep restricts forms of protected speech along with forms of unprotected speech it was intended to restrict. The city argues that it was the conduct, the way in which Griffie expressed herself, and not the context of what she said that led to the unlawful assembly charge. Lawyers representing the state wrote in a brief that the “noisy conduct” provision cannot be too broad because noisy conduct is not protected speech.

A law is defined as having a “chilling effect” when its restrictions deter people from engaging in constitutionally protected speech. Griffie’s appeal claimed that after she was arrested for organizing the protest, she stopped her activist work with Project Justice ICT. In a response, the city said that Griffie claimed the ordinance had a chilling effect, but did not submit proof that it was actually chilling or interfering with protected speech.

The case tests whether the Wichita ordinance used to prosecute Griffie criminalizes free speech protected by the First Amendment. Wyandotte County, Paola, Olathe, Lawrence, and other local governments have similar ordinances that are based on a Kansas Statute. The state’s Supreme Court decision has the potential to determine whether or not those laws will be deemed unconstitutional. For more information see: Kansas Supreme Court to Decide if Wichita’s “Noisy Conduct” Ban Violates First Amendment

Disney Takes on Ron DeSantis

The Walt Disney Company’s motion to amend its April 22nd filed First Amendment centric complaint against Florida governor Ron DeSantis was denied by a federal judge on September 1, 2023. U.S. District Judge Allen Winsor denied the company’s motion, claiming it did not comply with Local Rule 7.1(C), which requires a certificate confirming compliance with Rule 7.1(B)’s attorney conference requirement. The Walt Disney Company filed a lawsuit against DeSantis, alleging that the governor weaponized government power against Disney in retaliation for speaking out against the state’s “Don’t Say Gay” bill. The Florida government has explored a series of possible actions against the company, including placing tolls on the roads leading into Disney resorts and suggesting a state prison to be built nearby the theme parks.

However, in recent developments Disney is now free to pursue strictly constitutional pathways to defend against DeSantis’ oppositions  towards the company. The Walt Disney Company filed a Second Amended Complaint, giving the state 14 days to respond. For more information see: Ron DeSantis Denied Move to toss out Disney Suit; Mouse House Now Allowed to Pursue Alleged First Amendment Violations – Update

By: Javalin Cummings, Sierra Guzmán, Alexis Pascua (First Amendment Scholars Program)

Editor: Megan Lauricella (Graduate Student, Communication Studies, CSULB)

Last Updated: October 13, 2023

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