Tag Archives: free speech

Cleveland sued over protest rules for Republican convention

The American Civil Liberties Union of Ohio has sued Cleveland on behalf of a homeless organization and two groups planning marches during next month’s Republican National Convention, alleging the city’s rules for protests violate free speech rights.

For example, the lawsuit says an event zone of 3.3-square miles is “absurd” and other city rules place a burden on anyone who lives and works in downtown Cleveland.

Some questions and answers about the lawsuit and its claims:

 

Q: Who are the plaintiffs?

A: The plaintiffs include an affiliation of groups lending truth to the adage that politics makes strange bedfellows. They include Citizens For Trump, which plans to celebrate the candidacy of presumptive Republican nominee Donald Trump; Organize! Ohio, which plans to protest economic and social inequality in the U.S.; and Northeast Ohio Coalition for the Homeless, an advocacy group.

 

Q: What are their biggest complaints?

A: Citizens For Trump and Organize! Ohio submitted applications weeks ago seeking permits to hold their events and marches July 18, the first day of the four-day convention at Quicken Loans Arena. Representatives were told no permits would be approved until the U.S. Secret Service finalized its security plan two days before the start of the convention. When the city issued its permit regulations last month, the groups said the rules were too restrictive and would impede them from delivering their messages.

 

Q: What kind of restrictions did the city impose?

A: The regulations designate a 1.5-mile route for marches that crosses a long bridge spanning the Cuyahoga River and ends near a freeway exit a long distance from the arena. The city also restricted when marches could be held and required them to be completed within 50 minutes.

 

Q: Why is the homeless group suing the city?

A: The lawsuit claims most of Cleveland’s downtown homeless live in shelters and encampments within the event zone but not close to Quicken Loans Arena. Cleveland’s regulations include a long list of items that people are not allowed to have within the zone, including rope, string, tape, tents, sleeping bags, backpacks and coolers.

 

Q: What else is prohibited by Cleveland?

A: The list includes drones, gas masks, lasers, sledgehammers, containers of bodily fluids, bottles, cans, thermoses, ladders, grappling hooks, canned goods and tennis balls. Squirt guns and pellet guns are prohibited, but not actual firearms. Ohio is an open carry gun state, so protesters licensed to carry firearms are allowed to be in the event zone with a holstered gun.

 

Q: Why tennis balls?

A: Police are worried that protesters might try to spook horses by throwing tennis balls at them. The lawsuit points out there are tennis courts at Cleveland State University, which is in the event zone.

 

Q: What happens next?

A: The lawsuit will likely be fast-tracked in federal court given the short time frame before the start of the convention. The ACLU asked the judge to force the city to amend its regulations and issue the two groups permits to hold their previously planned events.

 

Q: What was Cleveland’s response?

A: The city declined to comment.

 

Your right to know: State should support student expression

Two years ago, the Fond du Lac School District unveiled new guidelines requiring administrative review and approval before the publication of any student media. The reaction by students was swift, democratic and effective.

Within days, they had publicized the change online, presented their case at a school board meeting, appeared on local media and gathered several thousand signatures on a petition calling for student publications to be returned to the students. Over the next several months, they highlighted the district’s use of these guidelines to block the publication of particular photos and information.

These efforts succeeded. The district agreed to convene a group of student journalists and educators to craft a new policy. By the next school year, the restrictive guidelines were gone.

The passion for the free flow of information and constitutional rights displayed by these students stands as a prime example of the power of a journalism education based on student responsibility and ownership. But efforts to stifle student speech remain.

Recently, a principal in Chicago censored a story about the school’s new starting time, at one point threatening to kill the publication entirely. Student journalists in Missouri were told they must submit a story about their superintendent’s resignation to the principal for editing. A student journalist in West Bend, Wisconsin, reports being barred from writing about certain topics.

And in many schools, the looming possibility of administrative overreach leads students to censor themselves, back down when challenged, or abandon student publications entirely.

This should not be happening. While schools must maintain an effective learning atmosphere, they do not have the right to suppress information they simply do not like. Court cases have made clear that students maintain their First Amendment rights of free speech at school.

Unfortunately, a 1988 U.S. Supreme Court ruling (Hazelwood School District v. Kuhlmeier) established that schools could review and possibly restrain speech if related to legitimate educational purposes. Many school districts have over-applied this highly subjective standard.

Once a principal is allowed to pre-approve student journalism, it is inevitable that he or she will find things to change to make the expression more “positive” or more aligned with what the principal wants to say. This does not teach journalism or citizenship. It teaches that authority figures — government officials, in the case of public schools — decide what ideas can be discussed.

Since Hazelwood, eight states have passed laws clearly establishing that student publications belong to students, who are themselves responsible for deciding what to publish. North Dakota passed one such law unanimously last year, and more than 20 other states are looking to join them.

These bills, termed New Voices laws, do nothing to limit a school’s ability to prohibit illegal or harmful speech. But they do let students perfect the power of their own voices and explore the benefits of the free flow of information in a democracy.

Students in Wisconsin deserve a New Voices law of their own. The effort to do so here, known as Supporting New Voices of Wisconsin, has been getting media attention and editorial support.

In the next legislative session, we hope state lawmakers will help ensure that the rights of student journalists are clear and that schools are using student publications for student learning, rather than to promote the agenda of government officials.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (www.wisfoic.org), a nonprofit group dedicated to open government. Matthew Smith, a teacher at Fond du Lac High School, is a coordinator for New Voices of Wisconsin.

Scalia’s death increases odds for John Doe appeal

The death of Justice Antonin Scalia increases the chances the decision in John Doe 2 may reach the U.S. Supreme Court.

The Wisconsin high court’s decision halted the investigation into allegations that Scott Walker illegally coordinated with outside groups during the recall elections of 2011 and 2012. The court held that the First Amendment forbids the state from banning coordination between candidates and issue advocacy groups, even though the U.S. Supreme Court never has reach any such ruling.

There are legal limits on donations to candidates, but contributions to groups that indirectly support specific candidates without naming them can raise unlimited sums of money from anonymous donors. That means in Wisconsin candidates have limitless dollars at their personal disposal — dollars that cannot be traced.

Campaign limits to candidates are intended to rein in the corrupting effect of money in politics. Allowing coordination between outside groups, more commonly known as “dark money” groups, and candidates defeats the purpose of limits on campaigns.

If the district attorneys fighting back against this John Doe decision were concerned that appealing to the U.S. Supreme Court might backfire, because a majority might uphold the Wisconsin Supreme Court decision, they can put that fear to rest.

Scalia represented a problem for the district attorneys and for the liberal justices on the Court. The court now has a 4–4 split between conservative and liberal justices. The four liberal justices have consistently voted in favor of campaign finance regulations and they now essentially hold veto power.

In his concurring opinion in the Citizens United case of 2010, Scalia made a First Amendment argument that echoes that of the John Doe opponents. He wrote: “The individual person’s right to speak includes the right to speak in association with other individual persons. …The Amendment is written in terms of ‘speech,’ not speakers. Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals.”

But Scalia’s argument here is only about corporations and associations having free speech rights. It’s not about candidates being allowed to coordinate with issue advocacy groups.

Indeed, Justice Anthony Kennedy, writing the majority opinion in Citizens United, which Scalia signed on to, made this distinction: “By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.”

It is precisely that definition the Wisconsin Supreme Court erased in its John Doe decision.

Matt Rothschild is the executive director of the Wisconsin Democracy Campaign.


Suit alleges police brutality against Black Lives Matter protesters

Eleven people who were clubbed, teargassed, slammed to the ground, shot with impact munitions or arrested by the police during a December 2014 demonstration sued the city of Berkeley and officials of the California city in federal court.

The plaintiffs include journalists who were covering the demonstration, as well as demonstrators. They are seeking to revamp how Berkeley polices demonstrations, as well as to be compensated for injuries.

The Dec. 6, 2014, protest was a March Against State Violence calling for justice for Michael Brown, Eric Garner and other unarmed black people killed by white police officers.

“The march was largely peaceful,” said civil rights attorney Jim Chanin. “But the Berkeley Police assumed the worst and almost immediately began hitting people in an indiscriminate manner. This was illegal, and unnecessarily exacerbated tension between police and protesters. It showed a complete lack of appreciation for the fact that the demonstrators were exercising their constitutional right to speak out on very serious issues: police racist killings and the failure of our criminal justice system to hold officers accountable.”

The lawsuit follows the revelation that Berkeley Police stop data shows a pattern of racial profiling against black and Latino people, with blacks and Latinos far more likely than whites to be stopped and searched.

The plaintiffs include San Francisco Chronicle photographer Sam Wolson, who was clubbed on the head as he knelt to take a photo. Wolson said, “I was really surprised and disappointed, by the whole situation. If you can’t have media safely holding all parties accountable then the whole system breaks down.”

Cindy Pincus, a minister, was also hit on the head as she bent down to help another woman who had fallen. “The response by police was so disproportionately violent to the peaceful gathering of protesters. We were indiscriminately beaten even as we tried to lawfully retreat.  I suffered once; this is what our brown and black citizens suffer every day.”

Cal student Nisa Dang was clubbed from behind while she was urging other demonstrators to be peaceful.

Later that night, the police forced her and others to march from Berkeley to the Oakland border.

“The officers hit and jabbed us with their batons and shot tear gas canisters at our backs to forcibly make us keep moving south. They didn’t stop their violent tactics until we got to Oakland. Those of us who had been forced into Oakland then had to walk all the way back to Berkeley to return to the safety of our homes.”

Curtis Johnson was visiting from Los Angeles and happened on the demonstration. “I had only been with the march for about ten minutes when I was shot in the knee with an impact munition,” he said. “There was no warning.” Mr. Johnson was shot by Hayward officers who were providing mutual aid to Berkeley.

“There have been demonstrations all over the Bay Area as part of the growing nationwide movement for Black Lives and the NLG had legal observers at most of them,” said Rachel Lederman, co-counsel for the plaintiffs and the president of the National Lawyers Guild’s San Francisco Bay Area Chapter. “It was Berkeley who responded in the most brutal and unconstitutional manner. To make matters worse, Berkeley made no effort to control the other agencies who responded to its call for mutual aid.”

Wisconsin lawmakers forward bill to prevent activists from filming hunters violating laws

Wisconsin lawmakers edged closer last week to passing a bill that would prohibit animal rights activists from following, photographing or videotaping hunters in the woods.

The Assembly’s natural resources committee passed the Republican-authored bill on a 14-1 vote despite questions about whether it is necessary or constitutional.

Last year, the U.S. Supreme Court overturned a Massachusetts law creating a 35-foot buffer zone between protesters and abortion clinics, saying that it violated the protesters’ free speech rights, even though they were often terrorizing women, many of whom were already in an emotional crisis.

But while the committee’s minority Democrats questioned whether the bill might violate nature lovers’ free speech rights, only one of them, Rep. Diane Hesselbein of Middleton, ultimately voted against the proposal.

The bill also would add dog training, baiting and feeding — all controversial practices that many hunters regard as inhumane and “cheating” to the list of protected hunting activities. It would expand the definition of interference to include remaining in a hunter’s sight, photographing a hunter, using a drone to photograph a hunter and confronting a hunter more than twice with the intention of interfering with or impeding their activity. First-time violators would face a $500 fine. Subsequent offenses would carry steeper fines as well as jail time.

Hunters have been complaining of harassment since the Wolf Patrol, a group of animal rights activists, followed and filmed wolf hunters in Wisconsin and Montana in 2014 looking for illegal activity. The federal government placed Great Lakes wolves back on the endangered species list last year, ending Wisconsin wolf hunts for the moment. But now bear hunters fear that activists will come after them next.

Still, it’s unclear whether hunter harassment is really a problem in Wisconsin. State law already prohibits stalking and interfering with hunting, fishing or trapping activities.

During a hearing about the bill last month, its author, Rep. Adam Jarchow, R-Balsam Lake, pointed to anecdotes about people making noise under tree stands to ruin hunts as a reason it’s needed. But he didn’t cite a single instance where someone had been convicted of harassing or threatening a hunter and he didn’t respond to repeated messages seeking clarification of that point.

A state Department of Natural Resources spokesman had no data immediately available when asked if the agency has any record of hunter harassment convictions. Wolf Patrol representatives say the group has never actually impeded or interfered with anyone.

The bill’s opponents say the state’s stalking laws already protect hunters and blocking people from watching, approaching or photographing hunters on public land would violate the First Amendment’s free speech guarantee.

Republicans on the committee joined with Democrats last week and adopted an amendment from Rep. Mark Spreitzer, D-Beloit, which clarifies that someone would have to intentionally interfere with a hunting activity to be convicted. But Rep. Katrina Shankland, a Stevens Point Democrat who voted in favor of the bill, still pressed the committee’s attorney, Larry Konapacki, for his opinion on whether the bill would withstand a constitutional challenge.

“That is a really difficult question,” Konopacki replied. “This is something that might be tested at some point.”

Can the KKK ‘adopt a highway’? That’s a legal question

A Georgia court heard arguments on July 9 about whether the state violated a Ku Klux Klan group’s constitutional rights by refusing its application to a highway cleanup program and whether a recent U.S. Supreme Court decision applies in the case.

The north Georgia KKK group applied to join the state’s Adopt-A-Highway program in May 2012, hoping to clean up along part of Route 515 in the Appalachian Mountains. The state Department of Transportation, which runs the program, denied the application. The department said its program was aimed at “civic-minded organizations in good standing.”

The American Civil Liberties Union Foundation sued on behalf of the KKK group in September 2012, arguing that the state violated the group’s right to free speech.

Fulton County Superior Court Judge Shawn Ellen LaGrua agreed and ruled in the group’s favor in November, saying the KKK’s group’s application was treated differently than others and that “viewpoint-based discrimination” is not allowed under the Georgia Constitution.

The state appealed, and the Georgia Court of Appeals heard arguments in the case Thursday. The judges made it clear that they are very interested in hearing arguments from both sides as to whether a U.S. Supreme Court decision in a Texas case issued last month applies in this case.

The U.S. Supreme Court upheld Texas’ refusal to issue a specialty license plate sought by the Sons of Confederate Veterans bearing the group’s logo, which includes the Confederate battle flag. The 5-4 ruling said Texas could limit the content of license plates because they are state property.

Senior assistant attorney general Julie Jacobs said the KKK’s claims are barred by the principle of sovereign immunity, which protects government entities from being sued without their consent.

Alan Begner, who represents the KKK, argued the state is not protected by sovereign immunity from the constitutional challenges raised in this case.

“All citizens must have the right to challenge constitutional violations or we’d have no Constitution at all,” he said.

But even if sovereign immunity doesn’t apply, the KKK’s arguments are still unsound because the Adopt-A-Highway signs constitute government speech and not constitutionally protected free speech, the state’s lawyers argued.

The state of Georgia controls the message and design of the Adopt-A-Highway signs, and roadway signs are generally associated with the state in the public’s mind, which makes it government speech, assistant attorney general Brittany Bolton argued.

In a briefing in the case before the Supreme Court’s decision came down, the KKK group’s lawyers said specialty license plates are the speech “most analogous” to the Adopt-A-Highway signs. Many courts have ruled the plates are a mix of government and individual speech, the group’s lawyers argued.

Maya Dillard Smith, executive director of the ACLU in Georgia, told reporters after the hearing that, unlike license plates which are used for safety and regulation, participation in the Adopt-A-Highway is constitutionally protected free speech.

The implications of denying that speech go far beyond whether the KKK can join the cleanup program, she said, adding that it amounts to the government singling out one group for scrutiny.

Begner argued before the judges that the brochure for the Adopt-A-Highway program proves that the act of joining is an expression of speech – it says belonging sends a message to the public that the participant is environmentally conscious.

Appeals Court Judge Anne Elizabeth Barnes told Begner the court wants to hear more of his arguments on the application of the U.S. Supreme Court decision in this case and asked him to submit a supplemental brief.

Supreme Court won’t revive North Carolina’s anti-abortion rule

The Supreme Court on Monday rejected an appeal from North Carolina to revive a requirement that abortion providers show and describe an ultrasound to a pregnant woman before she has an abortion.

The justices left in place an appeals court decision that said the 2011 North Carolina law was “ideological in intent” and violated doctors’ free-speech rights. The measure was championed by conservative Republicans in the state legislature, who overrode a veto from the then-Democratic governor to approve the law.

The North Carolina law would have required abortion providers to display and describe the ultrasound even if the woman refused to look and listen — a mandate that the court found particularly troublesome. The law did not include any exception for cases of rape, incest or severe fetal anomalies.

“North Carolinians should take comfort in knowing that this intrusive and unconstitutional law, which placed the ideological agenda of politicians above a doctor’s ability to provide a patient with the specific care she needs, will never go into effect,” said Sarah Preston of the American Civil Liberties Union of North Carolina, one of several groups that opposed the law in court. “We’re very glad the courts have recognized that politicians have no business interfering in personal medical decisions that should be left to a woman and her doctor.”

North Carolina is among 23 states, mostly in the South and the Midwest, which passed laws dealing with the administration of ultrasounds by abortion providers, according to the Guttmacher Institute, a research institute that supports abortion-rights.

The court took no action in a separate abortion case from Mississippi. The state is appealing a lower court ruling that effectively allowed Mississippi’s lone abortion clinic to remain open and blocked a state law that would have required the clinic’s doctors to have admitting privileges at a nearby hospital.

A second appeals court ruling involving a Texas law imposing restrictions on abortion providers also is expected to make its way to the Supreme Court soon. In Texas, the appeals court upheld the admitting privileges requirement and other provisions that could force 11 clinics to close by July 1, lawyers for the clinics said in court papers.

The North Carolina case is Walker-McGill v. Stuart, 14-1172.

Atlanta offering $20,000 to street performer arrested for celebrating gay marriage ruling

Atlanta officials are set to offer a well-known Atlanta street performer $20,000 to settle a lawsuit in which he says police violated his rights to free speech.

Multiple news outlets report that 62-year-old Bob Jamerson, commonly known as “Baton Bob,” says police violated his rights when he was arrested in Atlanta nearly two years ago. Jamerson is known for dancing on city sidewalks in costume.

In June 2013, Jamerson donned a white wedding dress and staged a performance he says celebrated the U.S. Supreme Court’s decision to end the federal gay marriage ban.

When officers asked him to leave the area, he refused and kicked officers.

Police arrested Jamerson for simple assault but later dismissed the charges. 

The settlement still needs to be approved by the full Atlanta City Council.

Opponents of ‘ag-gag’ law plead case to judge

Animal rights lawyers are asking a federal judge to strike down an Idaho law aiming to stop people from secretly filming animal abuse in the state’s agricultural facilities.

The law’s opponents asked U.S. District Judge B. Lynn Winmill this week for a summary judgment — a fast-tracked way for a judge to rule on a lopsided case without having a full trial.

Justin Marceau from the Animal Legal Defense Fund said the statute — dubbed the “ag gag” law — stifles free speech. 

But Carl Withroe from the Idaho Attorney General’s office said that the law doesn’t hinder whistleblowers. “The statute was designed to protect private property and to protect agricultural operations, not to target journalists or would-be whistleblowers,” Withroe said.

But Marceau argued that the law was actually inspired by animus toward journalists and whistleblowers, citing comments from lawmakers during the debate.

“The state can’t just wave the wand of private property and protect any law it wants,” said Marceau, who is also backed by a coalition of food safety groups and individual rights advocates.

Winmill said he hopes to issue his ruling next week. If he rejects the arguments, the case will likely head to a full trial.

Idaho is one of seven states with ag gag legislation, according to the American Society for the Prevention of Cruelty to Animals. Similar litigation — also prompted by the Animal Legal Defense Fund — is currently underway in Utah.

Lawmakers passed the statute last February after a Los Angeles-based vegetarian and animal-rights group called Mercy for Animals released a video showing animal abuse at one of Idaho’s largest dairies. The video of workers at Bettencourt Dairies shows workers stomping, beating, dragging and sexual abusing the cows.

But Idaho’s dairy industry says that the group used its videos to unfairly hurt Bettencourt’s business — not try to stop abuse.

Winmill already denied Idaho’s request to dismiss the lawsuit last September.

“This is really the cutting edge of the interstitial boundaries of First Amendment law,” he said. “The decision here has no politics and has no economic interests. It’s just a question of what the First Amendment means and how it should be applied.”

People convicted under the law face up to a year in jail and a $5,000 fine.