Federal appeals court revives Rep. Devin Nunes’ defamation lawsuit against Hearst, reporter

A federal appeals court has revived Rep. Devin Nunes’ defamation lawsuit against reporter Ryan Lizza and Hearst Magazine Media Inc. after the reporter shared the allegedly defamatory article on his Twitter account.

A three-judge panel of the U.S. Court of Appeals for the 8th Circuit last week reversed a lower court’s dismissal of the complaint, noting that Mr. Lizza shared the contested article on his Twitter account roughly a month after the lawsuit was originally filed in September 2019.

“The complaint sufficiently alleges that Lizza republished the article after he knew that the Congressman denied knowledge of undocumented labor on the farm or participation in any conspiracy to hide it,” wrote Judge Steven Colloton, a George W. Bush appointee.

Mr. Nunes, California Republican, filed the lawsuit after Mr. Lizza published an article in 2018 in Esquire magazine, then owned by Hearst, about his family’s farm in Iowa. The article suggested the family kept it a secret that they had sold their California farm and had begun operating a dairy farm in Iowa.

According to the court’s ruling, the article charged that Mr. Nunes’ family used undocumented labor in its operation of the farm. The online article was titled “Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret,” and the print version was titled “Milking the System.”

Mr. Nunes claims that the article was defamatory because it falsely implied he “‘conspired or colluded with his family and with others to hide or cover-up’ that the farm ‘employs undocumented labor,’ ” according to court papers.

Mr. Nunes’ office did not respond to a request for comment.

Mr. Lizza and Hearst had argued that the First Amendment protects them against the defamation claim, arguing that opinion is protected.

Neither Mr. Lizza nor representatives from Hearst responded to a request for comment.

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Biden Administration Appeals Texas’ Challenge To DACA

The Biden administration appealed a previous ruling Friday that declared the Deferred Action for Childhood Arrivals (DACA) illegal, CNN reported.

The Justice Department filed a notice to appeal the July decision by U.S. District Court Judge Andrew S. Hanen regarding DACA, CNN reported. A non-profit civil rights organization known as the Mexican American Legal Defense and Educational Fund also filed a notice to appeal. The organization is considered to be one of the country’s preeminent Latino civil rights organizations. They are also representing several DACA recipients, CNN reported. (RELATED: Federal Judge Will Continue Accepting DACA Applications Despite Believing The Program Is Illegal) 

The process will begin in the 5th U.S. Circuit Court of Appeals, CNN reported.

DACA was created in 2012 by the Obama administration as a way to allow illegal immigrants who were brought to the country as children by their parents to receive a deferred action from deportation. The participants in this group were often referred to as “Dreamers.” Now, many of DACA’s beneficiaries are now adults who stayed in the country past the timeframe the program permitted, according to CNN.

Hanen ruled in July that DACA was illegal and violates the Administrative Procedure Act (APA). The decision prevented the Biden administration from accepting new DACA applications.

“Hundreds of thousands of individual DACA recipients, along with their employers, states, and loved ones, have come to rely on the DACA program. Given those interests, it is not equitable for a government program that has engendered such a significant reliance to terminate suddenly,” Hanen wrote at the time. “This consideration, along with the government’s assertion that it is ready and willing to try to remedy the legal defects of the DACA program indicates that equity will not be served by a complete immediate cessation of DACA.”

Hanen’s ruling prevented the government from allowing new DACA applications. However, his order permitted current enrollees to stay while the case is being challenged in court. Most recently, after Hanen’s decision, a DACA regulation was proposed to attempt to resolve the chaotic situation. The proposal was submitted to the Office of Management and Budget.





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Florida can continue with banning mask mandate: appeals court

Florida’s ban on mask mandates is back on — for now. 

A Sunshine State appeals court ruled Friday that a lower judge should not have halted enforcement of the mandate moratorium, thereby restoring Gov. Ron DeSantis’ push to punish school districts who enforce face coverings.

“1st District Court of Appeals just granted the State of Florida’s request to reinstate the stay — meaning, the rule requiring ALL Florida school districts to protect parents’ rights to make choices about masking kids is BACK in effect!” DeSantis’ spokesperson Christina Pushaw wrote in a tweet

The decision from the First District Court of Appeal in Tallahassee means the state can impose financial penalties, such as docking salaries of local school board members, on the 13 school districts that are pushing ahead with a mask mandate. 

The state’s governor has argued his Parents BIll of Rights law was created so that parents are given the ability to choose whether or not their children should wear a mask while in class — not school officials. 

School districts that do require face coverings allow students to opt-out, but only for medical reasons, not parental choice. 

Gov. Ron DeSantis claims Florida parents should dictate whether their children should wear masks in school.
REUTERS/Joe Skipper/File

Charles Gallagher, who’s representing a group of parents challenging the law, wrote on Twitter he is “disappointed” by the appeals court decision.  

“With a stay in place, students, parents and teachers are back in harm’s way,” Gallagher wrote. 

The on-again, off-again legal battle comes from a suit Gallagher and other attorneys filed on behalf of parents who are arguing the governor doesn’t have the authority to ban mask mandates. 

On August 27, Leon County Circuit Judge John C. Cooper agreed and then on Wednesday, lifted a stay that prevented the ruling from taking effect — a decision the appeals court then reversed on Friday. 

“We have serious doubts about standing, jurisdiction, and other threshold matters,” the judges wrote in the one-page decision. 

“Given the presumption against vacating the automatic stay, the stay should have been left in place pending appellate review.”

With Post wires





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Appeals Court Reinstates DeSantis’ Ban On School Mask Mandates

The 1st District Court of Appeal in Florida reimposed a stay Friday on a lower court ruling blocking Republican Gov. Ron DeSantis from outlawing mask mandates in schools.

DeSantis had requested a stay after Judge John Cooper ruled that the state could not impose penalties on local officials and educators who refused to comply with the ban on mask mandates. DeSantis can now punish districts that do not comply with his order while the case works its way through the court system.

“Upon our review of the trial court’s final judgment and the operative pleadings, we have serious doubts about standing, jurisdiction, and other threshold matters,” Friday’s ruling said. “These doubts significantly militate against vacating the automatic stay, the stay should have been left in place pending appellate review.” (RELATED: ‘Have At It’: Biden Throws Down Gauntlet On Vax Mandates, Blames Governors For Being ‘Cavalier’ With Lives)

“We are disappointed by the ruling and will be seeking pass-through jurisdiction of the Supreme Court of Florida. With a stay in place, students, parents and teachers are back in harm’s way,” said attorney Charles Gallagher, who is representing a group of parents suing the state, according to the Miami Herald.

Thirteen of the 67 school districts in Florida have already handed down mask mandates in defiance of DeSantis’ order. The state has begun withholding funding to some of those jurisdictions and is investigating non-compliance in others, according to the Herald.





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Aussie shoemaker hires top lawyer to fight over ‘Ugg’ boots

This Australia versus America showdown could get ugg-ly.

An Aussie mom-and-pop shoe business has drafted one of former President Bill Clinton’s highest-ranking administration officials to fight for ugg boots, the famously unstylish sheepskin footwear — and even the Australian government has joined the battle.

Australian shoemaker Eddie Oygur’s small suburban company, Australian Leather, has retained high-powered lawyer and former US Solicitor General Seth Waxman to convince the Supreme Court that US footwear giant Deckers cannot trademark the word “Ugg.” 

The Supreme Court bid argues that “Ugg” is a generic Australian term that should be protected against trademark in the same way companies cannot trademark French “champagne” or Greek “feta.”

The fleece-lined boots were first made popular Down Under by surfers in the 1960s but Deckers has trademarked the term in 130 countries, preventing Australian manufacturers from being able to cash in on the “Ugg” cachet overseas.

The California-based company bought a pair of the boots from Oygur’s website in 2016 — but then cried foul when the shoes arrived in the post because it claimed their US trademark had been infringed.

Eddie Oygur says US footwear giant Deckers cannot trademark the word “Ugg.”
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Now, after the US District Court for the Northern District of Illinois and the US Court of Appeals for the Federal Circuit both sided with Deckers in the trademark tussle, the Aussie small business wants to bring it in front of the highest court in the land.

Aussie politician-turned-lawyer Nick Xenephon said the case is about more than just a trademark — it’s about fighting for Australian culture and taking on corporate goliaths.

Harvard attorneys Seth Waxman
Eddie Oygur has retained former US Solicitor General Seth Waxman.
Craig F. Walker/The Boston Globe via Getty Images

“Imagine if a foreign company trademarked ‘hot dog’, an obviously generic term in the USA, and then sued every mom-and-pop store that sold them for breach of trademark. It’s that ridiculous,” Xenephon told The Post.

“This case is a big deal, for Eddie and his tiny company, for Australia, and for trademark law internationally.”

The Australian government has even ponied up $150,000 to help cover the cost of the proposed appeal.

However, Waxman is lobbying the government to put on more pressure by becoming a “friend of the court” — which would boost the chances of the case reaching the Supreme Court.

In a letter to Australian Attorney-General Michaelia Cash, Waxman said the case could have “profound consequences” on how the US profits from generic terms taken from other English-speaking countries.

“A friend of the court (amicus curiae) brief from the Australian government supporting U.S. Supreme Court review is critical to ensure these important issues receive attention at the highest levels of the U.S. legal system and the rights of the Australian nationals in this case are vindicated,” he wrote.

eddie oygur
Eddie Oygur has a small suburban company, Australian Leather.
Australian Leather Ugg Boots

“I am confident that if the Supreme Court takes the case, we will be able to make strong arguments on the merits.”

He insisted the Australian government would have little to lose.

“Australia would not be intervening in the case, but rather just expressing its own views in a brief addressing the importance of Supreme Court review,” Waxman wrote.

“Australia would face no risk of being assessed damages, court costs, or Deckers’ attorney’s fees if Australian Leather does not prevail.”

eddie oygur's boots
US footwear giant Deckers bought a pair of the boots from Eddie Oygur’s website in 2016.
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Aussies living in the United States are also backing Oygur’s fight, telling The Post that they want their fashion symbol back.

“Ugg boots are as iconically Australian as Vegemite, the outback and Steve Irwin’s ‘crikey!’,” Australian turned Upper East Sider Jimmy Hodgson-van Daal said.

“If you don’t get why we care so much, walk a mile in our shoes.”

Deckers, meanwhile, claims it welcomes fair competition and only enforces its trademark to protect US shoppers from inferior imitations.

eddie oygur's boots
Seth Waxman said the case could have “profound consequences.”
Facebook

“This case was always about protecting American consumers from being deceived into buying counterfeited product offered for sale and sold online into the United States, where UGG is a registered trademark,” PR director at Ugg parent Deckers Brands Lindsey DiCola said in a statement.

The Australian government has been quietly lobbying to get its Ugg boots back since 2017 when then Australian Prime Minister directed the Australian Embassy in Washington to “reiterate Australia’s view that ‘Ugg’ is a generic term” but that the “Australian government has so far refused to become a “friend of the court.”



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Military appeals court shoots down claims about 9/11 Gitmo judge

GUANTANAMO BAY, Cuba — The first day of court for the 9/11 proceedings at Guantanamo Bay in more than 500 days was cut short on Tuesday when the U.S. Court of Military Commission Review, which oversees the island war court, handed down a ruling that shot down defense claims the Pentagon had unlawfully influenced decisions on which judge should preside over the case.

Air Force Col. Matthew McCall took over as a judge on Tuesday, making him the fourth judge to preside over hearings in this iteration of the 9/11 case. At issue was a saga stemming from last year, when McCall served a short stint as a judge before he was removed for not having two years of military experience on the bench at the time. McCall now has that experience.

Then-chief trial judge of the Military Commissions Trial Judiciary, Army Col. Douglas Watkins, picked McCall for the 9/11 case gig last October, but the prosecution argued McCall did not meet the proper requirements. Watkins asked the Pentagon for clarification, and McCall says he agreed to recuse himself, with Watkins removing McCall and temporarily putting himself in charge of the case.

McCall passed the two-year milestone this summer and was reassigned shortly after. Defense lawyers had asked the military appeals court to intervene, arguing the Defense Department exercised undue influence over the judicial selections, but the review court disagreed on Tuesday.

After Watkins removed McCall from the case, he ruled earlier this year the government could move forward with the destruction of a CIA black site that the defense argued was evidence.

In the two decades  since 19 al Qaeda terrorists hijacked and crashed planes into the World Trade Center buildings, the Pentagon, and a field near Shanksville, Pennsylvania, killing nearly 3,000 people, the five men believed to be responsible for the planning and execution of the plot have yet to stand trial . The key question of whether confessions obtained by the FBI after their CIA custody should be admissible remains unresolved.

Khalid Sheikh Mohammed, dubbed “KSM” and described as  “the principal architect of the 9/11 attacks” in the 9/11 Commission Report, was a close ally of Osama bin Laden and is being tried alongside four co-defendants: his nephew, Ammar Baluchi, alleged hijacking trainer Walid bin Attash, 9/11 facilitator Ramzi bin Shibh, and al Qaeda money man Mustafa Hawsawi.

The defense teams argue the black site issue goes back to 2012 when the U.S. government wanted to destroy a black site known publicly as “Site A” — likely in Afghanistan, where it is believed numerous detainees were held. The government filed an order to destroy the site, and it was preliminarily approved in 2014, with years of litigation following. Watkins greenlit the destruction of the site in 2021 after McCall left the case. Baluchi’s team said they would now appeal this to the U.S. Court of Appeals for the District of Columbia Circuit.

“The larger issue is that this is one more example of the Department of Defense’s unlawful influence over the judiciary process. Judges are supposed to be independent, to make their own decisions on legal issues,” Jay Connell, a lawyer for KSM’s nephew, told reporters on Tuesday. “This is yet one more example of the Pentagon telling military commission judges how to decide issues — in this case, how to decide the qualifications of Judge McCall.”

Connell added: “The prosecution asked for permission for the United States government to destroy the black site. We have fought that for years now, and during the time of the temporary judge, he made the final decision on that matter.”

The New York Times reported in early September a CIA compound that helped with evacuations during the Taliban takeover this summer had been destroyed, including the part thought to have been a CIA black site.

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McCall is a graduate of the University of Hawaii Law School, with one of his many stints at U.S. bases and installations worldwide being a trial attorney at the Central Criminal Court of Iraq in Baghdad.

McCall said Tuesday he believed he was “certified and qualified” to preside over the case and that “I’m not aware of any grounds for challenge against me.” He said that “I closed down my social media when I was detailed to this case” and didn’t think he had any conflicts of interest.





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Appeals court halts voting rights restoration for North Carolina felons

A North Carolina law that bars former felons from voting will stay in place after an appeals court temporarily blocked a lower court’s ruling that reversed the law.

The Wake County Superior Court ruled last month the state’s 1973 law that blocked North Carolinians who have been released from prison and placed on parole or probation from voting was unconstitutional.

The Wake County court ruled the law violated the Equal Protection Clause and the Ban on Property Qualifications in the North Carolina Constitution. Plaintiffs and their lawyers argued a person’s right to vote depended on their ability to pay debts associated with a previous felony conviction.

The North Carolina Court of Appeals blocked the lower court’s ruling from going into effect Friday until the appeals case is heard. Attorneys for the General Assembly, defendants in the case, argued that North Carolina’s Constitution states felons cannot vote unless the Legislature adopts a law to re-enfranchise them.

“The decision to block the lower court’s ruling affirms that judges can’t just replace laws they don’t like with new ones,” Sen. Warren Daniel, R-Burke, said in a statement.

Lawyers for the North Carolina NAACP, Community Success Initiative, Justice Served NC and Wash Away Unemployment said the Wake County ruling would have resulted in the state’s largest expansion of voting rights since the Voting Rights Act of 1965. More than 50,000 North Carolina felons were slated to regain their voting rights.



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Florida school mask mandate ban remains as state appeals ruling nullifying it

Gov. Ron DeSantis’ executive order and Florida Department of Education’s (DOE) policy banning school boards from imposing mandatory mask mandates will remain in place until a Sept. 8 hearing before Leon County Circuit Court Judge John Cooper.

As expected, the Governor’s Office and DOE appealed Cooper’s 37-page written order issued Thursday night that clarified his Aug. 27 oral ruling that the governor overstepped his authority in his June 30 executive orderthat said parents do not need to comply with mandatory mask policies issued by school boards.

DeSantis based his order on House Bill 1059, the Parents’ Bill of Rights Act adopted by lawmakers during the 2021 legislative session.

State Attorney Michael Abel filed the motion for appeal Thursday evening in the 1st District Court of Appeal in Tallahassee, securing an automatic stay of Cooper’s newly-minted order.

Plaintiff’s attorneys have filed a motion to vacate the stay, claiming in their motion that because of the two-month long delta-variant fueled COVID-19 surge across the state “there is the very real prospect of irreparable harm to the individual plaintiffs.”

A hearing on the automatic stay is set for Wednesday before Cooper. When the appeal will be heard by the 1st District is uncertain.

With his oral ruling, Cooper concluded a four-day trial in Tallahassee stemming from a May lawsuit filed by parents from seven counties alleging DeSantis’ order unconstitutionally bars school boards from managing the pandemic in local schools.

Cooper’s oral ruling did not enjoin the state from implementing DeSantis’ order. His written ruling, however, does so – or did so for a few hours before the state secured the automatic appeal.

Despite the ruling, DOE was enforcing it, awaiting stipulations in Cooper’s written order.

State Education Commissioner Richard Corcoran Monday announced the DOE had withheld funds equal to the salaries of its school board members from Alachua and Broward county school districts for violating the order.

“We’re going to fight to protect parent’s rights to make health care decisions for their children,” Corcoran said. “They know what is best for their children. What’s unacceptable is the politicians who have raised their right hands and pledged, under oath, to uphold the Constitution but are not doing so. Simply said, elected officials cannot pick and choose what laws they want to follow.”

Responding to a query from the Suwannee County School Board, Florida Attorney General Ashley Moody said Cooper’s ruling does not make DeSantis’ order invalid nor repeal Rule 64DER21-12, which authorizes the state’s Department of Health (DOH) to issue rules governing “the control of preventable communicable diseases” in schools.

“It is my opinion that the district must comply with Rule 64DER21-12 … unless and until the judiciary declares them invalid,” Moody wrote.

Cooper in his written order did not address the emergency rule because the DOH was not named in the lawsuit. He ruled at the start of the trial that plaintiffs could not add a new defendant in the case.

But he warned the state against taking actions against the 13 boards that have adopted mandatory mask policies — including 11 since Aug. 17 when the Board of Education (BOE) agreed to penalize the Alachua and Broward boards — until at least the Sept. 8 hearing or resolution of its appeal.

“If the defendants strictly enforce the executive order, the Department of Health rule, or any other policy prohibiting mask mandates without a parental opt-out, then they are acting without authority and are refusing to comply with all provisions of the law,” Cooper wrote.



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Florida school mask debate headed for appeals court battle

ST. PETERSBURG, Fla. (AP) – The battle over mask requirements to guard against coronavirus in Florida schools headed for a new legal phase Friday following an appeal by Republican Gov. Ron DeSantis of a judge’s ruling that a blanket ban on mask mandates exceeds the state government’s authority.

The case heads next to the 15 judges on the 1st District Court of Appeal in Tallahassee and could ultimately wind up in the state Supreme Court. The issue is whether the freshly minted Parents Bill of Rights law means parents have sole authority to decide if their child wears a mask or permits a school board to impose a broad mask requirement.

Because that will likely take time, lawyers for parents challenging the ban on mask requirements want Leon County Circuit Judge John C. Cooper to immediately lift an automatic stay that effectively allows the ban to continue to be enforced during the appeal.

Plaintiff attorney Charles Gallagher said in a court filing that the rise of the highly contagious delta variant of the COVID-19 virus makes it all the more important that school districts be permitted to decide student mask mandates for themselves.

“If the automatic stay remains in place, defendants would be permitted during the duration of the appeal to enforce the executive order and freely expose students and school staff to increased risk of delta variant infection, which is a continuing constitutional violation,” Gallagher wrote. “Compelling circumstances are clearly present here.”

Cooper set a hearing for Wednesday morning on the parents’ request that the stay be lifted. Jacob Oliva, public schools chancellor at the state Department of Education, said in a notice Thursday to local superintendents that “enforcement must cease if the stay is lifted.”

Under the DeSantis executive order, state education officials have been seeking to penalize defiant school boards by withholding salaries of board members. As of Friday, 13 districts representing more than half of Florida’s 2.8 million public school students had imposed mask mandates despite the governor’s order that a parental opt-out must be included. Most have only an opt-out for medical reasons.

The rebel districts showed no signs of backing down, with some hiring lawyers to defend their decisions that often came after raucous public meetings pitting pro- and anti-mask parents against each other. Alachua County school Superintendent Carlee Simon, like others, insisted a mask mandate is permitted under the Parents Bill of Rights.

The judge’s ruling against the DeSantis order, she said in a statement, “confirms what we’ve said all along, which is that our mask mandate does not violate Florida law.”

DeSantis, who is gearing up for a 2022 re-election campaign and a possible 2024 presidential run, has dismissed the recommendation from the Centers for Disease Control and Prevention that people generally wear masks to prevent coronavirus spread in certain situations. In particular, he contends that masks are less essential for young people and carry some risks of their own for children.

At a news conference Friday in Pensacola, DeSantis said he opposes broad government or business mandates on masks or anything else related to the coronavirus pandemic. He did not directly address the school mask debate.

“We’ve got to protect people’s ability to live their lives,” DeSantis said. “My philosophy is, as a governor, my job is to protect your individual freedom.”

The governor’s appeal came Thursday night after Cooper issued a written version of his order delivered orally last week. The judge found that the Parents Bill of Rights law exempts government actions that are needed to protect public health and are reasonable and limited in scope – such as masking students to prevent the spread of COVID-19 in schools.

In fact, Cooper wrote that the DeSantis order on school masks itself violates the Parents Bill of Rights by illegally constraining the actions of school boards.

“This statute does not support a statewide order or action interfering with the constitutionally provided authority of local school districts to provide for the safety and health of the children based on the unique facts on the ground in a particular county,” Cooper wrote.

In addition, the judge said school boards must be afforded a chance to contest any penalties levied against them for adopting a student mask mandate.

The appeals court did not immediately indicate when it would take up the governor’s appeal, which first must be filed in a full written document. The action taken Thursday night was a notice to the court that a detailed appeal of Cooper’s order is coming.

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Ron DeSantis, Florida governor, appeals ruling on masks in schools

ST. PETERSBURG, Fla. — Florida Gov. Ron DeSantis has appealed a judge’s ruling that the governor exceeded his authority by ordering school boards not to impose strict mask requirements on students to combat the spread of the coronavirus.

The governor’s lawyers took their case Thursday to the 1st District Court of Appeal in Tallahassee. DeSantis wants the appeals court to reverse last week’s decision by Leon County Circuit Judge John C. Cooper, which essentially gave Florida’s 67 school boards the power to impose a student mask mandate without parental consent.

DeSantis, a Republican, said at a news conference earlier this week that he is confident the state will win on appeal by linking the mask mandate order to the Parents Bill of Rights law. That law, the governor said, reserves for parents the authority to oversee their children’s education and health.

Cooper found, however, that the Bill of Rights law exempts government actions that are needed to protect public health and are reasonable and limited in scope – such as masking students to prevent the spread of COVID-19 in schools.

“It doesn’t require that a mask mandate must include a parental opt-out at all,” Cooper said in an oral ruling Friday.

DeSantis and state education officials have threatened to impose financial penalties on school boards that adopt a mask requirement without a provision allowing parents to opt out.

So far, they have moved to withhold salaries for school board members in Alachua and Broward counties. Those are two of the 13 school boards representing over half of Florida’s 2.8 million students that have voted for mask mandates in defiance of the governor’s order.

“Ultimately, we are just trying to stand with the parents,” DeSantis said. “We think it’s important that they are given the ability to opt out.”

In his ruling last week, Cooper agreed with a group of parents who claimed in a lawsuit that DeSantis’ order is unconstitutional and cannot be enforced. The issue has triggered intense and divisive school board meetings around the state, pitting parents who say masks are essential for children’s safety against those who call orders to wear them government overreach.

DeSantis has dismissed the recommendation from the Centers for Disease Control and Prevention that people wear masks. In particular, he contends that masks are less essential for young people and carry some risks of their own for children.

But Cooper said the state’s medical experts who testified during the trial that masking is ineffective in preventing COVID-19′s spread are in a distinct minority among doctors and scientists. He also said that while DeSantis frequently states that a Brown University study concluded masks are ineffective, the study’s authors wrote that no such conclusion should be drawn.

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