Sheriff Violated First Amendment by Ordering Teen to Take Down Post Saying She Had COVID –

From Judge Brett Ludwig’s decision yesterday in Cohoon v. Konrath (E.D. Wisc.); generally quite correct, I think (though there might be room for punishing people who—unlike the plaintiff here—deliberately publicly lied about having a communicable disease, as there may be for punishing people who put out hoaxes about having committed crimes):

The SARS-CoV-2 virus and COVID-19 have had a tremendous impact on American society. But, as this case makes clear, that impact has its limits and, more specifically, does not extend to overriding the protections of the First Amendment…. [Defendants Sheriff Joseph Konrath and Patrol Sergeant Cameron Klump] violated [Amyiah Cohoon’s] free-speech rights by demanding that she take down her social media posts or face criminal citation or arrest….

In March 2020, Amyiah, then a sophomore at Westfield Area High School, traveled with her school band on a spring break trip to Disney World and Universal Studios in Florida. During that trip, various states, including Florida and Wisconsin, declared public health emergencies in response to the then just-emerging COVID-19 pandemic. Four days after returning home from Florida, Amyiah began feeling ill. Her symptoms included a fever and dry cough. Two days later, she began having trouble breathing, so her mother took her to the emergency room at Divine Savior Hospital in Portage, Wisconsin.

The doctors at Divine Savior evaluated Amyiah and diagnosed her with an “acute upper respiratory infection.” They informed her that her symptoms were consistent with COVID- 19 but said they could not test her for the virus due to the testing criteria in effect at the time. They then discharged her with an inhaler and instructions to strictly self-quarantine for 14 days and return if her condition worsened. They also instructed her parents to self-quarantine for 14 days, consistent with the COVID-19 protocols in place at the time. After returning home, Amyiah posted about her experience on Instagram, captioning a photo of herself from the spring break trip with: “Hey guys… sorry I’ve been on a long break.. I won[‘]t be back for a while longer due to me no[w] having the COVID-19 virus… I don’t want the attention it[‘]s just the truth… I am now in self quarantine and am not allow[e]d to leave my room and have an inhaler since they said to go home… best of wishes. love you guys.”

Three days later, on March 25, 2020, Amyiah’s symptoms worsened. Her mother promptly took her back to Divine Savior, which then redirected her via ambulance to University of Wisconsin Children’s Hospital in Madison. Once admitted to UW Children’s, Amyiah was finally tested for COVID-19. Her test came back negative the following morning, but the doctors told the Cohoons that she may still have had COVID-19 and simply missed the window for testing positive. To that end, they released her with orders to continue her 14-day quarantine.

After arriving home from the hospital, Amyiah again took to Instagram. She posted a photo of herself with an oxygen mask on her face, captioned: “I am finally home after being hospitalized for a day and a half. I am still o[n] breathing treatment but have beaten the corona virus. Stay home and be safe[.]” At the time of this post, Marquette County, Wisconsin had yet to register even a single confirmed positive COVID case. In response to Amyiah’s post, the County Health Department and the Westfield School District received numerous phone calls from concerned citizens.

In hopes of convincing Amyiah to voluntarily remove the post, the County Health Department referred the matter to County Sheriff Konrath. Sheriff Konrath relayed the necessary information to Sergeant Klump, who was on duty at the time. The content of this conversation was later summarized in Sergeant Klump’s Detail Incident Report, which Sheriff Konrath reviewed and approved. The Report states: “Sheriff Konrath advised he wished for me to respond to the residence and have [Amyiah’s] post removed from her social media … When I advised [Mr. Cohoon] that I was there to have [Amyiah] remove the post, he became upset ….”

On the evening of March 27, 2020, Sergeant Klump arrived at the Cohoons’ home. A microphone and dash-cam captured the audio and video of the ensuing interaction. Sergeant Klump spoke for some time with Mr. Cohoon before Mrs. Cohoon and Amyiah joined them outside the house. Upon exiting the house, Amyiah heard Sergeant Klump explain: “All I’m here for is to figure out what this post is about, seeing she tested negative …. And we need to get it taken down.” Amyiah then agreed to go inside and take the post down. While she was inside, Sergeant Klump threatened Mr. Cohoon: “If [the post] doesn’t come down, the Sheriff has directed me to issue disorderly conduct citations, if not start taking people to jail.”

After removing the post, Amyiah exited the house again and showed Sergeant Klump her Instagram page. While outside, Amyiah heard her father twice repeat Sergeant Klump’s earlier threat: “[Y]ou guys want to threaten somebody with going to jail over it and add insult to injury?,” and “[I]t doesn’t do any good when you can’t warn [people] when you got a Sheriff’s department threatening to throw people in jail over it.” Sergeant Klump did not correct Mr. Cohoon’s recitation of the threat, instead saying, “I’m just doing what we can do as a Sheriff’s Office. Okay?”

After Sergeant Klump departed, Amyiah also deleted her March 22 Instagram post about her first trip to Divine Savior. Later that evening, the Cohoons discovered that Westfield School District Superintendent Robert Meicher had sent a news update to families in the district that included a statement about Amyiah’s posts. The update read: “It was brought to my attention today that there was a rumor floating out there that one of our students contracted Covid-19 while on the band trip to Florida two weeks ago. Let me assure you there is NO truth to this. This was a foolish means to get attention and the source of the rumor has been addressed.” Amyiah has not posted about her experience with COVID-19 on social media since….

Plaintiff’s Instagram Post Was Unquestionably Protected Speech Under the First Amendment.

Even if short and often grammatically scurrilous, social media posts do not fall outside the ambit of the First Amendment. To the contrary, they are exactly what the First Amendment seeks to protect. In the eyes of the law, when Amyiah Cohoon took to Instagram, she was no different than John F. Tinker wearing his black armband in the halls of the Des Moines public schools, or Paul Robert Cohen donning his “Fuck the Draft” jacket in the corridors of the Los Angeles County Courthouse, and her speech deserved the same degree of protection.

But Defendants disagree. In their view, Amyiah forfeited her constitutional protection when she published a post that caused concern in the community and led to an influx of phone calls to the Westfield School District and Marquette County Health Department. According to Sheriff Konrath, this was akin to “screaming fire in a crowded movie theater.” Even setting aside that the popular movie theater analogy actually referred to “falsely shouting fire in a theater and causing a panic,” Schenck v. United States (1919) (emphasis added), Defendants’ argument still fails. While content-based speech restrictions are permissible in limited circumstances (incitement, obscenity, defamation, fighting words, child pornography, etc.), the Supreme Court “has rejected as ‘startling and dangerous’ a ‘free-floating test for First Amendment coverage … based on an ad hoc balancing of relative social costs and benefits.'”

Labeling censorship societally beneficial does not render it lawful. If it did, nearly all censorship would evade First Amendment scrutiny. Defendants may have preferred to keep  Marquette County residents ignorant to the possibility of COVID-19 in their community for a while longer, so they could avoid having to field calls from concerned citizens, but that preference did not give them authority to hunt down and eradicate inconvenient Instagram posts. Amyiah’s post is not captured by any of the categorical exceptions to the First Amendment, so this Court will not balance the social utility of curtailing it against its government-assigned value.

But Defendants persist. They cast Amyiah’s characterization of her illness as a lie, insisting that because she ultimately tested negative, she was prohibited from publicly proclaiming that she had beaten COVID-19. But the very doctors who tested her also informed her that she may have had COVID-19 in spite of the negative test.

Her Instagram posts were, therefore, at worst, incomplete. The notion that the long arm of the government—redaction pen in hand—can extend to this sort of incomplete speech is plainly wrong. The Marquette County Sheriff had no more ability to silence Amyiah’s posts than it would to silence the many talking heads on cable news, who routinely pronounce one-sided hot takes on the issues of the day, purposefully ignoring any inconvenient facts that might disrupt their preferred narratives. Indeed, even if Amyiah’s posts had been untruthful, no court has ever suggested that noncommercial false speech is exempt from First Amendment scrutiny. See United States v. Alvarez (2012). The Supreme Court has emphasized: “[t]he remedy for speech that is false is speech that is true. This is the ordinary course in a free society.” The government here had every opportunity to counter Amyiah’s speech, but it opted instead to engage in the objectionable practice of censorship.

{Defendants insist that, based on his knowledge at the time of the encounter, Sergeant Klump had probable cause to arrest Amyiah under the Wisconsin and Marquette County Disorderly Conduct provisions. In relevant part, these provisions punish “[w]hoever, in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance[.]”

Defendants appear to recognize that none of the statute’s specific enumerations even remotely apply to Amyiah’s Instagram post and thus focus on the “otherwise disorderly conduct” language. Wisconsin courts have interpreted this phrase to encompass acts that corrupt public morals or outrage the sense of public decency. Defendants argue that, even if his belief was ultimately mistaken, Sergeant Klump had a reasonable basis to believe there was probable cause to arrest Amyiah under the catchall disorderly conduct language because he had been informed that her Instagram post was causing significant disturbance, anxiety, fear, concern, and even panic among other citizens.

Defendants’ probable-cause argument dramatically understates the probable-cause analysis for disorderly conduct. If accepted, Defendants’ position would largely gut the First Amendment’s protection for free speech, allowing police officers a free hand to wrongfully arrest anyone engaging in protected speech so long as the offending officer could point to a possible disturbance or perceived anxiety among those who opposed the speech. Accordingly, the Wisconsin Supreme Court has held that speech that “falls within the protection of the First Amendment … may not be punished as disorderly conduct.” Defendants offer no answer to this precedent, which removes any basis for probable cause. Because Amyiah’s social media posts were protected speech, Sergeant Klump could not have reasonably believed he had probable cause to arrest her or her family. Defendants’ probable-cause defense fails as a matter of law.} …

Defendants Took Adverse Action Against Plaintiff.

The audiovisual recording of the police encounter at the Cohoon home captured Sergeant Klump threatening Mr. Cohoon: “If [the post] doesn’t come down, the Sheriff has directed me to issue disorderly conduct citations, if not start taking people to jail.” According to Defendants, though, because Sergeant Klump never made this threat to Amyiah directly—instead uttering the threat when only her father was present—she could not have personally experienced any threat of adverse action. This superficial analysis fails for a number of reasons.

First, the record makes clear that Sergeant Klump’s intention throughout his 30-minute visit was to get Amyiah to remove her social media posts through the use of threats against her and perhaps her parents. That he expressed this intent only during his discussions with Amyiah’s father, after Amyiah had retreated into the house to comply with the police officer’s demand, does not mean that she was not the realistic subject of threatened police action. Indeed, it appears that Amyiah made the logical ‘hop’ necessary to infer the sergeant had threatened her arrest because, in her sworn declaration, she recalled, “After [Sergeant Klump] left, I was afraid that he would find my first post and come back for that one, so I deleted that post too.” Moreover, she stated, “I would also like to post further about my scare with COVID-19 on social media, and to repost the posts I removed, but I am afraid that another officer will come to my home and cite or arrest my parents or me.” So not only was Sergeant Klump’s threat of arrest likely to deter a person of ordinary firmness from engaging in protected conduct, in this case it did just that….

Analogizing to a citizen’s ability to consent to a warrantless police search of their property, Defendants argue that Amyiah’s decision to acquiesce in deleting her Instagram post rendered her action voluntary and, therefore, outside the scope of First Amendment protection. Defendants correctly allude to the important “difference between government expression and … intimidation—the first permitted by the First Amendment, the latter forbidden by it.” In the First Amendment retaliation context, “‘[w]hat matters is the distinction between attempts to convince and attempts to coerce.'”

Defendants ask the Court to lump Sergeant Klump’s efforts into the “attempts to convince” basket. Amyiah agreed to delete her Instagram post prior to learning of Sergeant Klump’s threats. How then, Defendants ask, can she possibly claim coercion? This argument ignores the inherently chilling and coercive nature of a uniformed police officer showing up at a teenager’s home and demanding that she cease otherwise protected speech.

Sergeant Klump’s dash-cam footage shows that it was not his persuasive rhetoric that led Amyiah to delete her social media post, but rather his demand made under the auspices of the Sheriff’s Department: “[W]e need to get it taken down.” That was coercion by any metric. The state cannot dispatch a law enforcement officer to the home of a teenager to demand that she remove an Instagram post that government officials disagree with and then claim the officials were only engaging in the Socratic method.

It is possible that a Westfield administrator or Marquette County Health Department employee could have engaged in a mutually-respectful discussion with Amyiah to try to convince her to retract her post voluntarily, but that is not the method they chose. They elected, instead, to rely on the coercive power of the Sheriff’s Department, and any attempt to obfuscate that fact by casting Sergeant Klump as an earnest public relations expert must fail.


The First Amendment is not a game setting for the government to toggle off and on. It applies in times of tranquility and times of strife. While Defendants in this case may have believed their actions served the greater good, that belief cannot insulate them. Demanding a 16-year-old remove protected speech from her Instagram account is a First Amendment violation. Declaratory judgment {establishing that Defendants violated her First Amendment rights} is granted….

Congratulations to Luke Berg and Rick Esenberg of the Wisconsin Institute for Law & Liberty, who represented Cohoon.

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Government’s Frivolous, Retaliatory Demand for Critic’s Business Records May Violate First Amendment –

From McGee v. Township of Conyngham, decided yesterday by the Third Circuit, in a nonprecedential opinion by Judge Kent Jordan, joined by Judges David Porter and Marjorie Rendell:

John McGee became suspicious that a Conyngham Township Supervisor was syphoning government money into her own pockets, so he requested information from the Township under Pennsylvania’s Right-to-Know Law….

McGee is a businessman and landlord who has lived in the Township of Conyngham, Pennsylvania since 2002. In 2015, he became involved in Township politics, attending occasional meetings of the Board of Supervisors and speaking up about his concerns with the Township’s housing code. In February of 2017, he grew suspicious of the Township’s finances and submitted a Pennsylvania “Right-to-Know Request Form” to the Board, seeking, among other things, time records, payment records, daily schedules, and expense reimbursements made to the Township’s Secretary and Supervisor, Linda Tarlecki. Tarlecki had been the Township’s Secretary since 2006, prior to becoming a Supervisor. She was responsible for responding to Right-to-Know requests directed to the Township, and she provided McGee a partial response. Later, McGee sent a second request, again seeking Tarlecki’s payroll and reimbursement information. McGee had also been asking questions about such records at Township meetings.

After receiving the second request, the Township sent a Right-To-Know request to McGee, seeking tax records for his businesses and receipts for repairs done to his rental properties. Tarlecki testified that she prepared and handed the request to McGee because she “got tired of getting a Right to Know off of him every time I was out of the office.” She did not, however, “expect the [requested] documents to come back.” The named requesters on the form were “Conyngham Township Authority and Conyngham Township.”

When McGee received the Township’s request, he did not respond, retain a lawyer, or contact the Township Board of Supervisors. And he had previously written the Township a letter in which he noted his understanding that the Right-to-Know Law allows taxpayers to request information pertaining to the operations of municipalities and state agencies. He now asserts, however, that he was not aware that the request for information could not be enforced against him, as an individual. Later, at a Township meeting, he asked the Supervisors why they wanted his personal and business information and they refused to explain. A reporter who had written critical articles about the Township Board also received a request from Tarlecki seeking information on the reporter’s meetings with McGee.

Things soon broke McGee’s way politically, and his suspicions of Tarlecki turned out to be justified. McGee was elected to the Board as a write-in candidate and Tarlecki was voted out in November 2017. After that, state police investigated Tarlecki and determined that she had stolen more than $180,000 from the Township. She was charged with various crimes….

McGee sued, and the Third Circuit allowed the First Amendment claim to go forward:

In order to prevail on a retaliation claim under the First Amendment, “a plaintiff must … [prove]: (1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3) a causal link between the constitutionally protected conduct and the retaliatory action.” There does not appear to be any dispute that McGee engaged in constitutionally protected speech, nor that there was evidence of a causal link between his speech and the Right-to-Know request Tarlecki gave him.

The point of contention here is on the second of the three elements of the claim, namely, whether McGee adduced enough evidence to allow a rational jury to find that a “person of ordinary firmness” would have been deterred from criticizing the Township Board after receiving the Right-to-Know request that Tarlecki handed him. While the question is a close one, we are, when reviewing summary judgment, required to view the facts in the light most favorable to the non-moving party, McGee. Viewed through that prism, we conclude McGee came forward with enough evidence to withstand summary judgment.

In evaluating that second element, we have “required that the nature of the retaliatory acts … be more than de minimis or trivial[,]” meaning more than “criticism, false accusations, or verbal reprimands.” At the same time, however, we have also emphasized that “the threshold” for establishing the second element “is ‘very low.'” “[W]hether an act is retaliatory is an objective question,” and we do not ask “whether the plaintiff [himself] was deterred.”

In this instance, while it is true that Tarlecki had no legal grounds for giving McGee a request for his business information [given that Pennsylvania’s Right-to-Know law only binds government agencies], she never acknowledged the lawlessness of her action, even after McGee inquired about the Right-to-Know request at a Township meeting. Instead, she brushed aside McGee’s inquiry with the strange assertion that it was “none of his business” why she had delivered the Right-to-Know request. And the record does not reveal that anybody else suggested to McGee that the Right-to-Know request could be ignored.

Nor does the document itself give any hint of that. The header on the request says that it is from the “Pennsylvania Office of Open Records” and is a “Standard Right-To-Know Request Form.” The request came in the name of the “Conyngham Township Authority and Conyngham Township,” and the language of the document indicates that its recipient has been given an official and serious demand for information, as authorized by state law.

Moreover, the manner in which Tarlecki framed the Right-to-Know request and the information that she requested were designed to grab an ordinary person’s attention. Whereas McGee’s requests to the Township were made in his individual capacity, the request made back to him was addressed to him in his capacity as president of Center State Properties Inc. and MAK Property Management Inc. It focused on his business activity and thus targeted his livelihood.

When ordinary people without legal training receive a demand from a government agency to produce tax returns and evidence justifying their business activities, a natural reaction is some degree of apprehension and defensiveness. Such concern is sensible because the transaction costs of dealing with a government investigation are never zero. Even if one is unsure about his rights and obligations, he may well suspect that an investigatory demand is implicitly backed by the threat of further investigation, penalty, or legal process.

That kind of threat seems to be precisely what Tarlecki meant to convey, to stop McGee from digging into the Township’s use of taxpayer resources. A reasonable jury could conclude that she wanted McGee to think twice about saying or doing anything that might displease Township officials. A threat like that might be particularly potent against someone like McGee, whose rental business in all probability requires permits, inspections, and other interactions with the local government. Viewed in the light most favorable to McGee, the evidence here would allow a jury to decide that Tarlecki’s “retaliatory action [would be] sufficient to deter a person of ordinary firmness from exercising his constitutional rights.” …

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House Passes Amendment Defunding Wuhan-Linked Non-Profit

The House of Representatives voted Thursday to defund EcoHealth Alliance, a non-profit organization which funneled taxpayer money to the Wuhan Institute of Virology (WIV).

The amendment was introduced by Republican Pennsylvania Rep. Guy Reschenthaler and passed as part of the 2022 fiscal year’s National Defense Authorization Act (NDAA). The amendment prohibits all federal funding to EcoHealth Alliance. The non-profit group directed millions of dollars in National Institutes of Health (NIH) grants to the Wuhan Institute of Virology over a period of several years.

“It is deeply disturbing that EcoHealth Alliance funneled American taxpayer dollars to support dangerous and potentially deadly research at the WIV, a laboratory run by the Chinese Communist Party (CCP) and tied to military biological research and the probable origin of the COVID-19 pandemic,” Reschenthaler said in a release. “I am proud to lead this effort to end the flow of defense funding to EcoHealth Alliance, and I thank my colleagues for including my amendment in the defense authorization bill and ensuring Americans’ hard-earned money never again funds risky experiments in labs operated by our adversaries.”

In addition to grants from the NIH, EcoHealth also received at least $37.5 million from a Department of Defense sub-agency. (RELATED: Inspector General To Investigate NIH Grants Linked To Wuhan Institute Of Virology)

Republicans have been gradually introducing measures to strip American funding from the WIV since the lab emerged at the center of the lab-leak theory of COVID-19’s origin. The lab-leak theory posits that the COVID-19 pandemic began after the virus was leaked from the WIV after being genetically altered by Chinese scientists.

EcoHealth head Peter Daszak was a member of the World Health Organization team investigating the origins of COVID-19 in Wuhan, China, leading some to suggest that the conflict of interest present between Daszak and the WIV compromised the entire investigation.

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ACLU Thinks the Second Amendment Is a Threat to the First Amendment –

On Tuesday, the American Civil Liberties Union (ACLU) and its New York affiliate organization, the NYCLU, jointly announced they had submitted an amicus brief in the upcoming Supreme Court case New York State Rifle & Pistol Association v. Corlett, which could determine the future of New York’s onerous, barely navigable process of concealed carry licensure. Unfortunately, the organization that refers to itself as “our nation’s guardian of liberty” is on the side of this illiberal process.

In the press release announcing the brief, the ACLU averred that “restrictions on guns in public spaces are appropriate to make public spaces safe for democratic participation, including First Amendment activity such as assembly, association, and speech.” In other words, the ACLU has decided that exercising one’s Second Amendment rights may run counter to someone else’s First Amendment rights, and is favoring the latter over the former. As evidence, the ACLU cites a case from last summer in which a Black Lives Matter rally in Florida was disrupted when a counter-protester—who also happened to be a concealed-carry license-holder—pulled out a handgun and threatened some marchers.

Regardless of one’s permit status, it is already illegal to threateningly brandish a weapon, including in Florida. It remains to be seen how one could not defend both rights equally, even in such a scenario.

The ACLU has been and continues to be a forthright defender of civil liberties in many situations, and a thorn in the side of presidential administrations of both political parties. At the same time, however, its defense of the Second Amendment has been rather lackluster. Even the organization’s internal philosophy on the subject is, at best, muddled, ranging from an erstwhile recognition of an individual right while pressing for “reasonable” regulations, to its most recent claim that the Constitution affords “a collective right rather than an individual right.” How a “collective” right can be achieved without a lot of people exercising an “individual” right is left unaddressed.

In recent years, the ACLU has evolved on the issue even more distressingly: In 2017, the Virginia ACLU sued on behalf of alt-right activist Jason Kessler when the city of Charlottesville, Virginia, would not allow him to hold his approved rally, dubbed “Unite the Right,” in his preferred location. The ACLU won the suit, but the rally infamously devolved into violence, with dozens of injuries and one death. In the aftermath, a portion of the ACLU staff revolted, signing an open letter in which they decried the organization’s “rigid stance” on defending the rights of the alt-right and white supremacists.

The following year, the national organization put out an internal memo clarifying its case selection guidelines: Rather than stridently fighting for the right to speech and peaceful assembly even for the most detested people, the organization would now weigh such competing considerations as “the extent to which the speech may assist in advancing the goals of white supremacists or others whose views are contrary to our values” and “whether the speakers seek to carry weapons.” While the memo does reaffirm the ACLU’s commitment to “continue our longstanding practice of representing [disfavored] groups,” former Executive Director Ira Glasser and former board member Wendy Kaminer both questioned whether the language of the memo was simply to give the organization cover to refuse such cases in the future.

If that were the case, it would directly contradict the historical role of the ACLU, which has famously taken on such cases as National Socialist Party of America v. Village of Skokie and Brandenburg v. Ohio, both of which it still touts on its website. In both cases, the ACLU won the right for neo-Nazis to march and chant hateful slogans, in the latter scenario while armed. Brandenburg, specifically, narrowed the rubric of speech that the government could criminalize, a big win for freedom of speech. Yet Kaminer wondered whether, “given its new guidelines,” the ACLU would even take up such a case today.

More than a decade has passed since the Supreme Court weighed in on a major Second Amendment case, after affirming an individual right to armed self-defense in 2008’s District of Columbia v. Heller and incorporating that right among the states in 2010’s McDonald v. Chicago. Those cases, however, were limited to an individual’s right to possess firearms in his own home, leaving the prospect of concealed carry for another day.

Concealed carry is a contentious topic in plenty of places around the country, but in New York, it can be especially inscrutable: In order to successfully obtain a license to carry a concealed weapon, applicants must demonstrate that they have a “proper cause” to do so. “Proper cause,” of course, is never defined, and judicial decisions have even determined that a “generalized desire to carry a concealed weapon to protect one’s person and property” is insufficient to qualify as “proper cause.”

In practice, of course, this leads to unequal application of the law, wherein low-income individuals who want weapons for protection are denied, while the wealthy and well-connected are approved. Long before he was under the purview of the Secret Service, former President Donald Trump employed his own private security team, since at least the 1990s. Nonetheless, Trump acknowledged in 2012 that he personally did, in fact, have a New York concealed carry permit.

In the ACLU/NYCLU joint press release, the organizations even concede that “like so many other laws in our country, some gun restrictions were historically enacted and targeted disproportionately against Black people.” This is undoubtedly true. And yet, they nonetheless argue that “across-the-board restrictions on open and concealed public carry have long been applied universally to all persons, and are an important means to maintain safety and peace in public spaces and help curb threats of violence against protestors.” Therefore, if a legal restriction is applied to everyone, rather than simply people of color, it passes muster.

Interestingly, this puts the ACLU/NYCLU on the opposite side of the issue as a consortium of public defender organizations. Earlier this year they filed a brief of their own in favor of scrapping the New York law, based upon the “hundreds of indigent people” they represent each year, who are prosecuted for keeping handguns for self-defense, “virtually all [of whom]…are Black and Hispanic.”

The Supreme Court is expected to hear oral arguments in November. In the meantime, though, it is a shame that the ACLU has continued to take a position contrary to its own explicitly stated goals. When the organization calls itself “the nation’s premier defender of the rights enshrined in the U.S. Constitution,” it apparently refers to all but one.

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Fourth Circuit Decision Affirming Second Amendment Rights of 18-20 Year Olds Vacated as Moot –

In July, in Hirschfeld v. ATF, a divided panel of the U.S. Court of Appeals for the Fourth Circuit held that the right to keep and bear arms enshrined in the Second Amendment applies to 18-20 year olds. Observers expected the Fourth Circuit might rehear the case en banc. Instead the decision has been vacated as moot, as none of the plaintiffs are 18-to-20-years old anymore. [Here are prior posts on the case from me and Eugene.]

Judge Richardson wrote a brief opinion for the court explaining the dismissal, joined by Judge Agee. He writes:

Plaintiff Natalia Marshall, while under the age of 21, wished to purchase a handgun from a federally licensed firearms dealer and sued to challenge the constitutionality of the federal laws and regulations which prohibited her from doing so while she was 18–20 years old. A divided panel of this court found those laws violated the text, structure, history, and tradition of the Second Amendment. After the opinion issued but before the mandate, Marshall turned 21. And that made her claims moot. Despite efforts to add parties and reframe her claimed injuries, it is too late to revive this case. So it must be dismissed as moot.

Once a case is rendered moot on appeal, we customarily vacate the opinions and remand with direction to dismiss. See United States v. Munsingwear, Inc., 340 U.S. 36, 39–40 (1950); . . . After weighing the equities, we follow that custom here.

I. This case is moot

We, of course, have only the power to adjudicate “Cases” and “Controversies.” U.S. Const. art. III, § 2. A “Case” or “Controversy” under Article III no longer exists “when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” . . . The case is instead moot and  must be dismissed, “[n]o matter how vehemently the parties continue to dispute the lawfulness of the conduct that precipitated the lawsuit.” . . . Here, Marshall challenged the prohibition on buying a handgun from a federally licensed firearms dealer while she was under 21. Once she turned  21, nothing prohibited her from buying the handgun she desired from a dealer of her choice. So her original claims are now moot.

To try to breathe new life into her claims after they became moot, Marshall alleged for the first time that she wishes to sell handguns to friends under 21. Those private sales would not typically be affected by the challenged laws and regulations. But Marshall seeks to bring those sales within this court’s purview by alleging that she wishes to use a federally licensed firearm dealer to facilitate the sales (by, for example, running background checks on her friends).

This newly alleged injury was raised for the first time on appeal, and only after the case became moot, so we refuse to consider it here. A second effort to revive this case by adding new parties also fails. Surely recognizing the mootness concern, Plaintiff’s attorney moved in the district court on July 24—the day before Marshall turned 21—to join new parties that might keep the case alive. But the district court lacked jurisdiction to grant the motion. Plaintiff’s attorney only submitted a motion to our court on July 27, two days after Marshall turned 21. By that time, the case was moot. And we cannot grant a motion to join new parties that was filed after a case is moot. . . . So the requests to join new parties are denied. This case is moot and must be dismissed.

II. The opinions are vacated

As the case is moot and must be dismissed, the government asks that we also vacate both the panel opinions and district court opinions. This is indeed our customary practice. . . . But it is not, as once commonly thought, mandatory. . . . Rather, it is an “equitable tradition” informed by equitable reasoning. Id. In determining whether to exercise the discretion to vacate our panel decision (and that of the district court), we are “informed almost entirely, if not entirely, by the twin considerations of fault and public interest.” . . .

We cannot assign fault to either party here. Marshall was bound to turn 21 in time. And though the efforts to remedy mootness came at the eleventh hour, they do not reflect any fault in Marshall’s original case. So our decision turns on the public interest.

There are strong reasons to avoid vacatur here. The constitutional interests implicated and the short timeframe in which to challenge the restrictions mean there is a strong public interest in this precedent. And “[j]udicial precedents are presumptively correct and valuable to the legal community as a whole.” . . .

Yet the public interest still favors vacating the opinions. To begin, our “customary practice when a case is rendered moot on appeal is to vacate the moot aspects of the lower court’s judgment” and remand with directions to dismiss. . . . Adherence to our custom promotes the “orderly operation of the federal judicial system” and thus protects the public interest. . . .This course also “clears the path for future relitigation of the issues between the parties.”  . . . That the case became moot by happenstance also favors vacatur. . . . And we are reluctant to leave a preclusive judgment standing against a federal agency responsible for enforcing federal law while cutting off the appellate process, particularly where the panel is split in its views.

Finally, we note that the public and the “legal community as a whole,” . . . will still retain some benefit from the panel opinion even if vacated, because the exchange of ideas between the panel and dissent will remain available as a persuasive source. . . .

As a result, we deny the motion to intervene or join new parties; we reject the attempt to recast Marshall’s injuries; we find the case moot; we remand to the district court with directions to dismiss as moot; and we vacate the prior panel opinions and the opinions of the district court.

Judge Wynn, who dissented from the original panel decision, concurred separately.

I join my fine colleague’s opinion in adhering to our usual practice of vacatur in mooted cases like this one. I write separately to emphasize that while, thanks to today’s technology, all vacated opinions remain available in the public sphere, they have no legal value. . . . The outcome here is that not only is the panel opinion vacated, but the entire matter including the district court’s decision is moot and therefore vacated. That is, this action from its inception is mooted.

To be sure, vacated opinions do not even bear the label of dicta. So if there is any persuasive value arising from vacated opinions, it can be no more than the value of newspaper editorials. Thus, my fine colleagues’ statement that “the panel and dissent will remain available as a persuasive source” means, like newspaper editorials, readers may themselves be persuaded one way or the other by our exchanges, but these vacated opinions have no persuasive value whatsoever as to how this Court would decide this issue.

This point is especially important here, where the opinions arising from our deeply divided panel became moot before the Court’s en banc process could be undertaken. It stands to reason that because the now-vacated panel majority opinion created a circuit split while overturning a fifty-year-old federal law, this matter surely met the requirements of Rule 35 for en banc review.

With that said, I join in the dismissal of this matter as moot and the vacatur of the panel opinions. Perhaps our circuit will again confront this issue, but today is not that day.

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Muslim Women Have First Amendment Right Not to Remove Head Covering for Booking Photos –

From Clark v. City of New York, decided Friday by Judge Analisa Torres (S.D.N.Y.)

In this action, two Muslim women and a not-for-profit organization challenge the NYPD’s former policy of requiring arrested individuals to remove religious head coverings …. {During the pendency of this lawsuit, the NYPD changed its policy such that arrestees are now permitted to wear a religious head covering when sitting for a mug shot.} …

Pursuant to the [former] Policy, arrestees were required to remove their religious head coverings for an official photograph …. [The Policy] requires that where an arrestee indicates a preference to retain her head covering for a mug shot, the arrestee will be transported to One Police Plaza, where the “arrestee can remove their religious head covering and have their photograph taken in private.” At One Police Plaza, a “member of the service of the same gender [as the arrestee]” must be available to take the photograph.

Additionally, arrestees who are transported there “will be informed that their arrest processing may be delayed due to operational requirements.” The resulting Booking Photographs, which depict arrestees without religious head coverings, are “integrated into other law enforcement databases, including the NYPD’s so-called ‘Forensic Imaging System,’ that use sophisticated facial recognition software.” Plaintiffs allege that this practice “increases the likelihood that images of arrestees without their religious head coverings will be viewed by many people long after the Booking Photograph is taken.” …

The Second Circuit has held that “[i]t is not a violation of the Free Exercise Clause to enforce a generally applicable rule, policy, or statute that burdens a religious practice, provided the burden is not the object of the law but merely the ‘incidental effect’ of an otherwise neutral provision.” “Where the government seeks to enforce a law that is neutral and of general applicability … then it need only demonstrate a rational basis for its enforcement, even if enforcement of the law incidentally burdens religious practices.” …

When prisoners challenge restrictions on their religious liberty, courts apply the rational basis test by evaluating (1) “whether the challenged regulation or official action has a valid, rational connection to a legitimate governmental objective,” (2) “whether prisoners have alternative means of exercising the burdened right,” (3) “the impact on guards, inmates, and prison resources of accommodating the right,” and (4) “the existence of alternative means of facilitating exercise of the right that have only a de minimis adverse effect on valid penological interests.” In analyzing claims that the NYPD’s failure to provide a religious accommodation with respect to arrest booking lacks a rational basis, courts in this Circuit have found “guidance in the body of caselaw addressing free-exercise claims brought by prisoners seeking accommodation of their religious practices in the penological context.” Plaintiffs argue that when applying the rational basis test to arrestees—as opposed to prisoners—a court should more closely scrutinize the City’s justification for its policy.

But, even if the Court were to evaluate Plaintiffs’ cause of action using the standard applied to prisoner claims, where courts tend to accept the City’s stated justification for a policy, the Court would conclude that the Policy violates the First Amendment.

Both parties agree that the City has a legitimate governmental interest in maintaining a photographic record of arrestees. But, Clark and Aziz have no alternative means of exercising their right to wear a hijab in public, at all times. The Policy, although sometimes inconsistently applied, still requires that Clark and Aziz remove their hijabs and makes their photographs available to men. The Court agrees with Plaintiffs that permitting observant Muslim women to wear a hijab while being photographed as part of booking procedure would have reasonably accommodated their beliefs and also would be less burdensome on the NYPD. Indeed, snapping a Booking Photograph of an arrestee with her religiously compelled covering would expend fewer resources than “requir[ing] dialogue with arrestees and additional time spent negotiating removal.”

Finally, the City contends that it has a legitimate interest in “having a photographic record of arrestees from which a later identification can be made.” But Plaintiffs point out that the Policy requires the arrestee to alter “her ordinary appearance before she is photographed (i.e., remove the hijab she customarily wears, will replace immediately after she is photographed, and plans to wear while in custody),” making a later identification more difficult. Allowing an arrestee to maintain her ordinary appearance in a Booking Photograph does not undermine the legitimate interest of keeping a photographic record of arrestees.

The United States Department of State, the USCIS, and the New York State Department of Motor Vehicles all allow religious head coverings in photographs used for identification. Police departments in Michigan, California, Minnesota, and Maine also allow arrestees to wear religious head gear while sitting for a mug shot. Plaintiffs correctly observe that arrestees who do not wear a head covering are equally capable, if not more capable, of making changes to their appearances after a Booking Photograph by switching hairstyles or facial jewelry. In fact, photographing the arrestee in her ordinary appearance likely furthers law enforcement’s interest in identification—rather than impeding such interest—because arrestees who have a sincere religious belief that requires them to wear a head covering are likely to be wearing that same covering when the need to identify them arises.

In sum, Plaintiffs have alleged facts that establish that requiring the removal of a hijab does not rationally advance the City’s valid interest in readily identifying arrestees.

Note that the case involved a hijab (“a garment worn by many Muslim women that covers the ears, hair, and neck, but leaves the entire face exposed”) and not a niqab (“a veil that covers the face”).

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Court Rejects First Amendment Overbreadth Challenge to Ban on Obstructing Law Enforcement –

From U.S. v. Phomma, decided Wednesday by Judge Robert E. Jones (D. Ore.):

The indictment charges Defendant with violating § 231(a)(3), which is part of the Civil Obedience Act of 1968…. Defendant states in his Motion to Dismiss that on August 26, 2020, he “was involved in the protest against racial injustice at the Immigration and Customs Enforcement (ICE) building located at 4310 S.W. Macadam Avenue, Portland.” … According to the government, on the night of August 26, Defendant “sprayed several Portland Police Officers with bear spray. The officers were wearing gas masks, but one officer noted that his neck and arms ‘started to burn.’ When he and the others removed their gas masks, their faces felt the same burning sensation.” The government states that “protesters filled the street, making passage by cars or delivery vehicles impossible.”…

Section 231(a)(3) provides,

Whoever commits or attempts to commit any act to obstruct, impede, or interfere with any fireman or law enforcement officer lawfully engaged in the lawful performance of his official duties incident to and during the commission of a civil disorder which in any way or degree obstructs, delays, or adversely affects commerce or the movement of any article or commodity in commerce or performance of any federally protected function … [s]hall be fined under this title or imprisoned not more than five years, or both.

The statute defines “civil disorder” as “any public disturbance involving acts of violence by assemblages of three or more persons, which causes an immediate danger of or results in damage or injury to the property or person of any other individual.” …

The First Amendment’s “guarantees of free speech and free press” protect “advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” The court may strike down a statute as overbroad under the First Amendment “if a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” “Rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or to conduct necessarily associated with speech (such as picketing or demonstrating).” …

The statute applies to persons who commit or attempt to commit “any act to obstruct, impede, or interfere” with law enforcement or firefighters. The words “any act” imply that the statute is directed towards conduct rather than speech. As the court in Howard explained,

The language of § 231 targets conduct, specifically conduct that obstructs, impedes, or interferes with law enforcement officers lawfully engaged in the lawful performance of their duties during a civil disorder that negatively impacts interstate commerce. The fact that there could be a circumstance in which the government could charge someone whose act constituted a form of speech or expression does not render § 231(a)(3) unconstitutional on its face. The case law makes clear that to violate the First Amendment on its face, a statute must reach “a substantial amount of constitutional protected conduct.” …

I note that the recent district court decisions cited here concern allegations of violent conduct. For example, Defendant here allegedly sprayed police officers with bear spray; in Wood, the defendant allegedly threw brick that shattered the back window of a police vehicle; in Pugh, the defendant allegedly used a baseball bat to break out the window of a police cruiser; and in Howard, the defendant allegedly threw an object at a police officer, hitting the officer in the head and knocking him unconscious. I conclude that the statute is targeted primarily if not exclusively at conduct, whether violent or not, rather than speech.

Defendant has not cited any prosecutions under § 231(a)(3) that involved protected speech, but rather provides only hypothetical situations. As noted, when a defendant presents a facial challenge to a statute as overbroad, the defendant must show that the statute reaches a “substantial amount of constitutionally protected conduct.” The Supreme Court has explained that “[t]he mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge.” Here, Defendant has failed to make the required showing to strike down § 231(a)(3) as overbroad….

Defendant contends that § 231(a)(3) should be subject to strict scrutiny because Congress enacted the statute with the intent to suppress the viewpoints of civil rights leaders. Defendant has submitted legislative history that includes senators’ statements castigating African-American civil rights leaders by name, including Martin Luther King, Jr., Stokely Carmichael, and H. Rap Brown.

However, I find that the statute itself is content-neutral on its face. Over the past fifty years, the statute has been applied to civil disorders across the political spectrum, including the recent riots on January 6, 2021 in Washington, D.C. Whatever the original intentions of the legislators who passed § 231(a)(3) in 1968, the statute on its face does not regulate speech based on content….

A statute that is content-neutral on its face, such as the statute at issue here, may still be subject to strict scrutiny if “the government has adopted a regulation of speech because of disagreement with the message it conveys. The government’s purpose is the controlling consideration.” Here, Defendant has not shown that § 231(a)(3) targets speech, much less specific messages. The history of the statute, as mentioned above, shows that it has been applied to defendants across the political spectrum….


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Muslim student who pulled US flags from 9/11 memorial, tossed them into trash bags exercised freedom of speech: First Amendment law prof

In the wake of a growing controversy at Washington University in St. Louis where a Muslim student removed nearly 3,000 miniature U.S. flags from a 9/11 memorial and was
caught on video carrying them away in trash bags — after which he railed against “Islamophobia” as he defended his “Flag Relocation” — a First Amendment law professor at the school is saying the student exercised his freedom of speech and had as much right to remove the flags as those put them there while creating the display.

Image source: Twitter video screenshot via @yaf

What’s the background?

Fadel Alkilani, who’s vice president of finance for the Student Union, was seen by another student, Nathaniel Hope, removing the flags Saturday morning — the 20th anniversary of the terror attacks — and Hope began recording video showing Alkilani holding multiple plastic bags containing the flags, the
college’s newspaper reported.

Alkilani defended his actions in a
formal statement Saturday night, calling his actions a “Flag Relocation Incident” in the title of his statement.

“Muslims such as I have faced fear, harassment, and Islamophobia from those who unjustly use the victims of 9/11 as a political cudgel,” he wrote. “Those who died during 9/11 deserve better than to be used as a political tool by those who seek to excuse American imperialism and Islamophobia.”

He added:

Since 9/11, Islamophobic hate crimes have been higher than they ever were before. The United States invaded countries in the Middle East and Central Asia, and over 900,000 people have been killed because of the wars the United States has propagated. 37 million people have been displaced, with some reports stating that number reaches up to 59 million. Any memorial of 9/11 that does not contend with these facts is not only incomplete, but it also amplifies pro-imperialist sentiment and actively disrespects those who have died because of American Invasion. A memorial which uses U.S. flags is especially insidious, as it does not recognize those who have fallen, but uses a symbol that was on the shoulders of those who are responsible for the deaths of 900,000 people, and uses the innocent lives lost during 9/11 as a political prop upholding American hegemony.

Alkilani also claimed he did nothing wrong — and was “verbally and physically harassed”:

The misinformation that is currently circulating on YAF’s page states that I was “stealing” the flags. This is due to a WashU College Republicans member, taking a video of me collecting flags in plastic bags. However, I had no intention of removing the flags from the Mudd Field area, and my full protest did not have the chance to be actualized. My planned protest was to place the bags of flags on Mudd field, along with various statistics (including those below) explaining the human cost of 9/11 in the past 20 years. On the sides of the bags, some writing may be visible, but the full statement was not outlined at the time of the video. I did not deface, destroy, damage, nor steal any flags, nor did I interfere with any registered event time. I assert that I did not violate any University Code of Conduct policy, though the conduct process is undergoing. Additionally, I was verbally and physically harassed by numerous WashU students and WUPD officers, whom I plan to report through official channels.

Image source: Twitter video screenshot via @yaf

Students said Alkilani tried to destroy the memorial Friday night, but campus police ordered him to stop, Fox News reported.

What did college officials have to say?

The school condemned Alkilani’s actions in a statement to the paper: “We were disappointed to learn about the disruption to the 9/11 display on Mudd Field. We condemn the interference with the expression of support by the College Republicans for the victims of the national tragedy that took place 20 years ago today.”

Chancellor Andrew Martin said much the same, the school paper reported Sunday: “I want to make it very clear that, as an institution, we find the actions of this student to be reprehensible. The removal of the flags impeded the ability of individuals to commemorate the lives lost on 9/11 and to process the trauma of that day.”

While Martin didn’t mention Alkilani by name, he did say the school would investigate the incident.

Professor stands up for Alkilani

However, one of the college’s most prominent First Amendment law professors, Gregory Magarian, argued that the administration’s silence on Islamophobia and racism after the incident caused “far greater harm” than Alkilani’s actions, the campus newspaper reported in a follow-up story.

“Putting up these flags as a way of commemorating 9/11 and making a political statement about 9/11 — there’s no question that that is an act of speech, that that is expressive, that it carries a message,” Magarian told the paper earlier this week. “And I think there’s no also no question that as a category, as a phenomenon, taking down the flags in opposition to the display is also expressive.”

The professor also said widespread hate speech following Alkilani’s counterprotest, and the way in which it was allowed to go on for days without rebuke from administrators, likely would have a chilling effect on the future atmosphere of free speech on campus, the paper added.

“The point of what Alkilani did, whether or not we agree with his methods, should not be lost: a lot of people feel differently about this,” Magarian added to the paper. “This is a very contentious, very contestable political message — the idea that 9/11 is all about national unity and the national interest, the idea that we should focus only on the deaths that occurred on 9/11 and not in commemorating this event talk about things that happened subsequently, that Islamophobia need be no part of the discussion and for that matter, the symbolic rendering of each of these lost lives in the form of an American flag.”

Anything else?

The paper reported that in the wake of the incident Muslim students have said they fear for their safety and are concerned about the rise of Islamophobic rhetoric from fellow students and from strangers on social media. In light of that, student groups have urged the university to address online hate and threats while other students went on an academic strike Wednesday, the paper added in separate stories.

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Florida Anti-Riot Law ‘Violates the First Amendment,’ Says Court in Scathing Rebuke of Gov. Ron DeSantis –

Enforcement of Florida’s “Combating Public Disorder Act” has been partially blocked by a federal judge, who appeared to agree with those challenging the “anti-riot” law that it was unfairly targeted at black Floridians and people protesting racial injustice.

Challengers to the law argued that it had a chilling effect on free speech and protest in the state.

Lawyers for Florida Gov. Ron DeSantis countered that there had been no such chilling effect—why, just look at how black residents were out protesting on June 19 this past summer, they said, pointing to a flyer that billed itself as a “Juneteenth Black Joy Celebration” at a community park in West Palm Beach.

This mockery of an argument didn’t go over so well with the court, which scolded DeSantis for having “conflated a community celebration of a federal holiday commemorating the end of slavery with a protest.”

“If Governor DeSantis included this particular post to imply that any gathering of Black people in a public space is a de facto protest, Plaintiffs’ concerns about how the statute’s new definition of ‘riot’ will be enforced are indeed well-founded,” wrote Chief Judge Mark Eaton Walker of the U.S. District Court for the Northern District of Florida last week. “It should go without saying that a public gathering of Black people celebrating ‘Black joy’ and release from bondage does not automatically equate to a protest.”

In a decision that opens by detailing Florida’s history of using anti-riot laws “to suppress activities threatening the state’s Jim Crow status quo,” Walker issued a preliminary injunction against DeSantis and several county sheriffs enforcing the new definition of rioting ensconced in Florida’s House Bill 1.

The law—proposed by DeSantis following racial justice protests last summer and enacted in April 2021, just before the verdict in George Floyd’s murder was handed down—stipulates that someone “commits a riot if he or she willfully participates in a violent public disturbance involving an assembly of three or more persons, acting with a common intent to assist each other in violent and disorderly conduct,” and this results in “injury to another person…damage to property…or imminent danger of injury to another person or damage to property.” The plaintiffs in this case—including the Dream Defenders, Black Lives Matter Alliance Broward, the Florida State Conference of the NAACP Branches, and several other groups—say this new definition could criminalize not just people acting violently but anyone who shows up at a protest or rally where violence happens to break out.

The “overbroad and vague” nature of the law could subject “non-violent protestors to criminal liability for exercising protected rights to speech and assembly,” the groups argued.

Evidence they provided to the court establishes “that their members have engaged in self-censoring for fear of the challenged statute’s enforcement against them,” noted Walker. “The chill is evidenced by the unwillingness of their members to turn out at protest events in the weeks following HB1’s enactment, the fact that some of the Plaintiffs have chosen to modify their activities to mitigate any threat of arrest at events, and the fact that at least one Plaintiff has ceased protest activities altogether.”

“If this Court does not enjoin the statute’s enforcement, the lawless actions of a few rogue individuals could effectively criminalize the protected speech of hundreds, if not thousands, of law-abiding Floridians,” writes Walker. “This violates the First Amendment.”

The anti-riot act didn’t just open up the possibility that more protesters could be arrested. It also immunizes people who hurt or kill “rioters” from civil liability, while creating several new crimes (including “cyberintimidation by publication”), stiffening penalties for existing crimes, and making an array of other changes. (“There’s a lot going on in this law—not all of it terrible—but there are many troubling components,” wrote Reason‘s Scott Shackford back in April. “There is hardly a place in America where the penalties for crimes are too small, and Florida is no exception. We don’t need to increase the penalties for existing crimes just because they take place during riots.”)

“The intended effect of the Act is to deter the exercise of First Amendment rights by certain individuals—namely, those interested in changing the way police interact with Black communities—by threatening (in Defendant Governor Ron DeSantis’s words) to have ‘a ton of bricks rain down on’ them,” suggest the plaintiffs in their initial complaint.

Moreover, “the text, legislative history, timing, and public statements about the Act made by Florida officials all make clear that the Act was racially motivated,” they argue:

The Act was first introduced in the fall of 2020 in direct response to nationwide protests sparked by multiple killings of unarmed Black people by the police. Through various procedural machinations, the Florida legislature hurried the legislation’s timeline, curtailed public comment, and even gave the Act an unusual immediate effective date in order to coincide with the eve of the verdict in the murder trial of Minneapolis police officer Derek Chauvin over the killing of George Floyd, an unarmed Black man. And as noted, multiple provisions reveal that the Act was explicitly designed to single out and punish Black organizers and those who lead protests seeking to end police violence against Black people.

In his recent ruling, Walker notes that “it is well within the Florida Legislature’s purview to ban coordinated violent or destructive conduct.” But the language of the anti-riot law is unclear about who will be lumped in with such activity.

The judge spends ample space dissecting the law’s wording. DeSantis “insists the statute is clear in that ‘it merely prohibits participating in, or assisting others in participating in, violent protests,'” he points out. But this interpretation “strains the rules of construction, grammar, and logic beyond their breaking points,” the judge suggests.

Here, our potential rioter must “willfully participate in a violent public disturbance.” This begs the questions of (1) what does it mean to participate, and (2) what is a violent public disturbance?”

This is where things fall apart. Although both Governor DeSantis and Sheriff Williams argue that the phrase “willfully participate” is commonly understood, neither party offers an actual definition. Is it enough to stand passively near violence? What if you continue protesting when violence erupts? What if that protest merely involves standing with a sign while others fight around you? Does it depend on whether your sign expresses a message that is pro- or anti-law enforcement? What about filming the violence? What if you are in the process of leaving the disturbance and give a rioter a bottle of water to wash tear gas from their eyes?…

A “violent public disturbance” raises similar questions. Is a violent public disturbance a peaceful protest that later turns violent? Is it a protest that creates an imminent risk of violence? Do the violent actions of three people render an otherwise peaceful protest of 300 people a violent public disturbance? Does a rowdy group of Proud Boys or anarchists have veto power over peaceful protests under this definition? At least one Florida court has defined a “riot” as a “violent public disturbance.” Perhaps, then, a person riots if they willfully participate in a riot?”

Ultimately, the law creates “a wide scope of potential interpretations for individuals, failing to give them reasonable notice,” while also “empower[ing] law enforcement officers to exercise their authority in arbitrary and discriminatory ways,” the judge concludes. That is, it “both fails to put Floridians of ordinary intelligence on notice of what acts it criminalizes and encourages arbitrary and discriminatory enforcement, making this provision vague to the point of unconstitutionality.”

DeSantis argued that halting enforcement of the law would leave Florida powerless to stop and punish violent rioters.

But “the Governor still has the power to take any measures to prevent overt threats of violence or violence, and to declare that a danger exists to the person or property of any citizen or citizens of the state and order any sheriff to exercise their full powers to suppress riots,” points out Walker. “Moreover, state law enforcement officers have numerous criminal statutes at their disposal that prohibit and punish unlawful conduct, and which protect public safety and private property.”

(The judge also clarifies that he is not “enjoining all law enforcement agencies across the state from enforcing this specific law. Instead, this Court is granting the narrow relief of enjoining the Governor and three sheriffs from enforcing Florida’s law against ‘rioting’ as defined by” this new language.)

Lastly, the judge has some words for people who would cheer this new law and new rioting language based solely on whom they presume it will target.

“It is not lost on this Court, nor should it be lost on the public, that this statute sweeps in all manner of conduct and speech, regardless of the point of view of the speaker or the cause he or she may be advocating,” writes Walker. “This definition of ‘riot’ casts a broad net. Though Plaintiffs claim that they and their members fear that it will be used against them based on the color of their skin or the messages that they express, its vagueness permits those in power to weaponize its enforcement against any group who wishes to express any message that the government disapproves of.”

Walker cautions that “while there may be some Floridians who welcome the chilling effect that this law has on the Plaintiffs in this case, depending on who is in power, next time it could be their ox being gored.”

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Clearview AI, the First Amendment, and Facial Recognition –

An interesting commentary by Clayton Kozinski (Lehotsky Keller LLP) on the lawsuit in which the Duke First Amendment Clinic, Jane Bambauer, and I filed an amicus brief (which unfortunately didn’t persuade the judge); here’s the opening:

The conversation about facial recognition technology typically centers around privacy. But an ongoing lawsuit in Illinois shows that it has just as much to do with free expression.

Clearview AI is the defendant in ACLU v. Clearview AI. It produces powerful facial recognition technology used by law enforcement across the country. Like all facial recognition software, Clearview’s is powered by faceprints.

The Illinois Superior Court recently rejected Clearview’s motion to dismiss argument that the Illinois Biometric Information Privacy Act (BIPA) impermissibly infringes its First Amendment rights. BIPA prohibits companies from collecting “faceprints” — geometric measurements of facial dimensions — without first obtaining individual consent….

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