Discrimination: Supreme Court ducked transgender bathroom case but issue isn’t going away; Justice Ginsburg in VMI case and WaPo op-ed wrote in favor of individual privacy.
Electoral College: Nevada Governor vetoes national popular vote bill, noting small states slitting their own throats by trying to skirt the Electoral College
1A Religion: Catholic foster care agency again challenging city policy forcing child placements with LGBTQ parents
Separation of Powers: 9th Circuit panel hears arguments in Climate Kids case seeking to establish fundamental right to sustainable environment; judge questions whether court has power to grant sweeping relief sought
1A: Supreme Court rejects Pamela Geller transit ad case, sends it back for lower court opinion
1A: “Who Owns Your Life Story?” 4th in series of 1A videos released
1A: Kentucky subpoenas to identify teachers who staged a sick-out to protest at state capital likely not a free speech violation
1A: law that lets you disclose all the facts in ethics complaint against Montana officials, but not the complaint itself, violates First Amendment
2A: Qualified noncitizen lawful permanent residents can’t be shut out from concealed carry permits (federal judge in California)
4A: police had reasonable suspicion to stop a second car apparently driving in tandem with a first car about which a tip had been received as carrying heroin. (6th Circuit)
5A Eminent Domain: commentary to effect government should not be able to get away with not paying just compensation just because asset not earning positive cash flow at the moment (Love Terminal case)
8A: “Excessive Fines Clause Applies to Corporations” (Colorado Supreme Court)
10A: Kamala Harris federal preclearance proposal for state abortion restrictions would upset federal/state balance
14A Equal Protection: Poisonous civil rights theories push racism under the guise of ‘racial equality’ (check your privilege, equality of outcome, etc.)
Separation of Powers: House attempts to keep alive federal FGM prosecution under a statute ruled unconstitutional and which the Justice Department has chosen not to defend on appeal
State Constitutions: Alabama Senate unanimously passes amendment to exclude noncitizen voting; measure to appear on 2020 ballot
Economic Freedom: 2 court rulings against food trucks overreach in “prohibiting you from operating near your competitors, or tracking you like a criminal out of fear you may sell delicious food to willing customers.”
State Department commission to examine whether ‘human rights’ offend U.S. concepts of natural law and natural rights
Shame! Barack Obama asserts “We hold these truths...” comes from the Constitution when in fact it comes from the Declaration of Independence
Kudos! “St Louis Blues Fans Finish National Anthem when Video System Fails”
14A Fundamental Rights: Supreme Court upholds Indiana law requiring burial or cremation of human remains from abortions (victory for personhood movement)
14A Fundamental Rights: Supreme Court not ready to take on issue of selective abortion on basis of race, gender, disability, etc., but Justice Thomas says Court must confront abortion being used as tool of ‘eugenic manipulation’
14A: fundamental rights: federal judge blocks implementation of Mississippi’s heartbeat abortion law which was supposed to take effect July 1st.
14A,1A: 20 states, others sue to block Trump rule bolstering conscience protections for healthcare providers refusing to participate in abortions, other procedures
1A Press: stay for political bias lifted, criminal prosecution to proceed against baby parts videographer who exposed Planned Parenthood
1A Press: U.S. charges WikiLeaks founder Julian Assange with publishing classified information - first time a publisher has been indicted for printing accurate material.
Discrimination: Supreme Court lets stand Pennsylvania school district’s transgender bathroom policy, turning away bodily privacy arguments
Discrimination: Proposed HHS rule would remove Obamacare protections for transgenders
Separation of Powers - federal judge blocks President Trump’s plans to use reallocated Defense Department funds to build the border wall.
Executive Privilege: here’s a rundown of the Trump v. House Democrats subpoena wars
Electoral College: Nevada legislature passes National Popular Vote compact; Governor has not indicated his position
1A: free speech rights upheld for anti-Semitic speakers at UMass
1A: Missouri city ordinance used to block ‘Black Lives Matter’ sign in front yard likely violates First Amendment
1A: Savannah tour guide licensing law offends First Amendment; 100-question test amounts to government deciding who gets to speak
1A: campaign finance law limit on contributions applies to bequests, D.C. Circuit rules; corrupt bargains still possible
1A Religion: Ohio city won’t compel Catholic school to operate contrary to its religious beliefs in employment, admissions, and other policies
Electoral College: state may fine ‘faithless’ presidential electors who go against voters’ wishes
“I Didn’t Earn Slavery Reparations, and I Don’t Want Them” - slave ancestor lived the American dream
Kudos to Santa Barbara City College instructor who recited the Pledge of Allegiance at board of trustees meeting over jeers of faculty, staff, and students
10A: Texas asserts sovereignty against Congress, refuses to comply with investigative demands
1A Religion: Christian student, forced to recite the Islamic conversion creed, petitions Supreme Court to hear her case
1A: “White House Won't Sign Global Pact To 'Combat Extremism' Due To 1st Amendment Concerns”
8A Cruel and Unusual: 9th Circuit hears case from Idaho transgender inmate demanding sex reassignment surgery
14A Fundamental Rights: federal judge wants to hear more evidence, vacates his own decision striking down Virginia law preventing nurses from performing abortions as undue burden on constitutional right
“AG Barr blasts federal judges who impose nationwide injunctions”
1A: courts split on whether state anti-BDS laws violate the First Amendment
1A: residential sign ordinance unconstitutionally overbroad; effectively outlawed Welcome Home banners, Happy Birthday balloons, security stickers, and Christmas lights
Free Expression: Ontario anti-hate bill could outlaw all public demonstrations by Christians (deemed offensive by Islamists, LGBT, etc.)
Free Expression: Giving primacy to diversity has hurt free expression - safe spaces, speech codes, censorship of ideas, etc.
1A Press: raid on San Fran freelancer’s home looking for name of source raises questions under California journalist shield law
2A: California bill would expand red flag law to allow co-workers, employers, and faculty to request court to take guns away
“New York Wants To Force All Gun Owners To Buy A Million Dollar Liability Policy”
Double Jeopardy: bill to allow state charges against someone receiving a presidential pardon advances in New York
5A Takings: is airport terminal worth the $17 million it cost to build it or $0 because it had yet to turn a profit?
5A Takings: pipeline companies taking land under court orders but not paying owners for years; Supreme Court asked to hear case on ‘take first and pay later’ condemnations
Economic Freedom: Florida bill aims to reduce crime by reducing occupational licensing requirements which make it harder for ex-cons to find work
19A: it’s the 100th anniversary of the House passage of women’s right to vote
14A: Plessy ‘separate but equal’ decision one of Supreme Court’s worst ever
Kudos! Boy from Navy family arranges discount at Lowe’s so more of his neighbors can fly American flag
Shame! Co-captain of United States Women’s national soccer team stomps her little foot, says she’ll probably never sing the National Anthem again because this President makes her so mad
Alabama’s Governor signed into law a bill to ban most abortions in the state. The law is intended as a direct challenge to the Supreme Court’s 1973 Roe v. Wade decision extending the fundamental right to privacy under the 14th Amendment Due Process clause to include a right to abortion. Alabama’s law does not take effect for 6 months but, already, at least one Alabama doctor has vowed to keep performing abortions when the law goes into effect.
Alabama joins other states that have recently passed restrictions on abortion. Heartbeat bills were passed in Georgia, Kentucky, Mississippi, and Ohio. In addition, Missouri’s Governor is expected to sign a heartbeat bill passed by the legislature this past week.
Meanwhile, observers reading the tea leaves in a different kind of case this past week said liberal Justice Breyer was sounding the alarm about the Supreme Court overturning Roe v. Wade. The case had to do with where states can be sued but the opinion overruled a 40-year-old precedent in the process. Breyer’s dissent concluded: “Today’s decision can only cause one to wonder which cases the Court will overrule next.” Overturning precedent is rare because of the judicial doctrine of ‘stare decisis’ which, in Latin, means ‘to stand by things decided’.
Will the Supreme Court overturn Roe v. Wade and uphold Alabama’s abortion ban? The appointments of Justices Kavanaugh and Gorsuch give pro-lifers hope. But it’s dangerous to make predictions, especially about the future. There were five votes on the Supreme Court to overturn Roe in 1992, but it didn’t happen. Instead, Justice Kennedy switched his vote and the Casey case has been used numerous times since to knock down state restrictions as ‘undue burdens’ on the right to abortion. Some say Chief Justice John Roberts is in the role of swing justice today and point out that he has never voted to strike down a state abortion restriction.
So it’s anybody’s guess what will happen if the issue does head back to the Supreme Court. The Court could uphold Roe, knock it down - sending the entire issue back to the states - or modify it as it did in the Casey case. That we are still fighting about abortion 40 years after Roe became the law of the land is testimony to the passion and endless inventiveness of pro-life activists who have been holding annual marches, praying outside of Planned Parenthood clinics, and producing a veritable blizzard of state and federal legislation - pain capable bills, dismemberment bills, heartbeat bills, and 44 attempts in the U.S. House at last count to stop infanticide. Other activists on the right would do well to study their methods and bring them to bear on other policy issues. Perhaps most importantly, pro-lifers did not quit in the face of long odds. They kept fighting. They’re an inspiration to anyone fighting the Left on other issues.
14A Fundamental Rights: legislation banning most abortions in Alabama awaits Governor’s signature; measure is meant as a direct challenge to the Supreme Court’s Roe versus Wade decision.
11A: Supreme Court overturns precedent, bars suits against states in the courts of other states; implications for overturning Roe v. Wade
1A: Texas town stands up against Freedom From Religion Foundation bullies, keeps crosses on courthouse
1A: First Amendment protects ‘I eat a**’ bumper sticker, prof argues
Free Expression: Canadian father subject to arrest if he uses ‘wrong’ gender pronoun in describing his trans child
Free Expression: candidate for judgeship loses nomination, gets fired from his law firm for being a conservative
2A: Arizona legalizes nunchucks
5A Eminent Domain: Baltimore is failing because it does not respect property rights. Seize the Preakness - really?
5A,4A: allowing union organizers on agricultural land is not a Fifth Amendment ‘taking’ or a Fourth Amendment ‘seizure’ (9th Circuit)
8A: “death row inmates’ long-term detention in conditions amounting to solitary confinement created a ‘substantial risk’ of psychological and emotional harm” (4th Circuit)
8A: Florida man sues gangster-city over $30,000 in fines for not mowing the lawn
Discrimination: Miami’s lawsuit against banks for predatory lending to black and Latino homebuyers may proceed; city plausibly alleges disproportionate defaults and hit to tax base from banks’ practices (11th Circuit)
14A Due Process: dismissing administrative appeal after litigant relied on the agency’s guidance for proper procedure is a denial of due process (Texas Supreme Court)
Former Virginia lawmaker Bob Marshall pens book on how to reclaim the Republic
No, the trivial garbage the House Dems keep bringing up is not a ‘constitutional crisis’
1A: Scholars, writers issue statement promoting campus free speech (you can still sign; more than 500 have)
1A: San Francisco sues to force doctors to perform abortions and other procedures against their conscience
1A Religion: injection of Buddhist-inspired ‘mindfulness’ practices into schools is an unconstitutional establishment of religion, conservative group argues
2A: U.S. pulls out of Obama-era UN arms treaty
2A: “Pennsylvania GOP Rep. Moves to Impeach ‘Rogue’ Pittsburgh Mayor Over Gun Control Measures”
8A: federal appeals court rules prison must give inmate addiction treatment
4A: Supreme Court is asked to take case of 4-year-old girl who was strip-searched; case could be occasion to refine tangled ‘qualified immunity’ doctrine
5A Vagueness: Supreme Court decision from last term hampering federal prosecutions of young terror suspects
14A Fundamental Rights: federal judge strikes down Virginia law preventing nurses from performing abortions as undue burden on constitutional right
1A: Immigration rights activist successfully argues unconstitutional retaliation for protected speech when ICE tries to deport him.
1A: students have a constitutional right to call for their principal to be fired
1A: podcast considers whether what Assange did was protected journalism or cyber-crime
1A: House of Representatives can insist its daily prayer be religious in nature, not atheist
2A: website not liable for allowing searches for private-seller gun ads
4A: chalking tires for parking enforcement is a ‘search’ but may be allowable under various exceptions to warrant requirement
6A: right to a public trial is not absolute; courtroom can be cleared of the public to accommodate Muslim witness who refused to take off veil otherwise
14A: Circuit split on whether ban on toplessness for women violates Equal Protection
State Constitution: “Kansas Supreme Court Rules State Constitution Protects Right To Abortion”
Article argues Congress is the supreme branch of government, as it should be in a Republic of self-governing people
There was no Constitution Minute last week because I was at a conservative conference in Michigan. While we were inside listening to the speakers, tires were slashed outside in the parking lot, cars with Trump bumper stickers being singled out. I came back from Michigan to news that Facebook banned Laura Loomer, Milo Yiannopoulos, Paul Joseph Watson, and other non-Left voices.
This is getting serious. While we are in a golden age of free speech in the courts with the Supreme Court issuing strong opinions like Citizens United and Janus, free expression in society overall is under attack like I’ve never seen before. The attacks are coming from several directions. In January, I told you about threats to free speech on college campuses; from the transgender pronoun police; from attempts to take banking services away from the NRA; from Google, YouTube, and other tech giants; and from Europe and the United Nations. [Constitution Minute, 1/27/19]
In April, I told you about Germany ratcheting up enforcement against so-called ‘hate speech’ online and new hate speech initiatives from the Attorneys General of Michigan and Minnesota that move in the same direction. [Constitution Minute, 4/14/19] The Michigan initiative includes a hate speech database to be maintained by the state civil rights agency that will collect remarks from individuals and groups for later use. This is a direct threat to free speech because hate speech, whether you like it or not, is protected under the First Amendment. Just think of the chilling effect on free expression in Michigan because now you have to worry about whether state bureaucrats will decide what you say is offensive and put you in their database.
The Michigan Attorney General’s office testified before a state legislative committee that they would not access the database in criminal hate crimes cases. But sharp legislators pointed out that enhanced hate crime penalties are a matter of proving intent and the database of prior remarks would most surely be mined for evidence of intent in criminal cases. The database will affect hate crimes cases from the charging decision all the way through to sentencing, the legislators pointed out. The fact that the Attorney General’s office would be so coy about this does not inspire confidence, especially when you consider the Attorney General herself led off her testimony with the correct but misleading statement her office did not have such a database. This was misleading because the database is at the civil rights agency, which she knows darn well. She also tried to square the circle that hate crime penalties do not punish people for what they think. Sure, and I’m the tooth fairy.
We have free speech under attack like never before and it’s metastasizing into governmental actions like the Michigan hate speech database. It’s become clear to me we’ve turned a corner in this country and our right to free expression is now in jeopardy. Therefore, I have decided to undertake a new project to push back on threats to free speech from the authoritarian Left, the Islamists, state bureaucrats with tunnel vision, and anyone else who would take away our First Amendment rights.
I will be using my Champions of the Constitution Grassroots Network to push back. We’re in 11 states and have been pushing back on attacks on the Constitution for the last year and a half. You are welcome to join. It doesn’t take a lot of time and will not pull you away from your other activist projects. I will also be collaborating with like-minded folks, for example, activists in Michigan who are trying to get their state civil rights agency brought before the same legislative committee to testify about their database.
I see that others are coming to similar conclusions, that it’s time to do something. Jenny Beth Martin of Tea Party Patriots joined more than 400 scholars, writers, and group leaders in signing a joint statement in April calling for more protection for free speech on college campuses.
I applaud this and every other effort to protect free expression in this country. We live in a time when non-Left voices are being pushed to the margins. It’s not too hard to imagine a future where the authoritarian Left attempts to seize control of the Internet and talk radio to squelch non-Left voices entirely. At that point, they will not be content with slashing tires but will progress to slashing jugular veins. If you doubt me, read the blood-soaked history of the Left and you’ll see what I’m talking about. The time to act is now.
10A: Ninth Circuit upholds California’s sanctuary state laws, cites anti-commandeering principle
1A: California Supreme Court suspends prosecution against undercover baby parts videomaker because of political bias and selective prosecution
1A: Seattle transit authority bans all political and religious ads after losing in court to Pamela Geller on terrorist ads
1A Religion v. Discrimination: 3rd Circuit upholds Philadelphia’s ban on Catholic agency serving in foster-care system because of its views on marriage
4A: outlier Washington Supreme Court holds one may be convicted of obstruction of justice for refusing police entry without a warrant
Foreign Law: Illinois court should not have deferred to Muslim divorce decree from India because procedures there lacked basic due process rights (rights to notice and opportunity to be heard)
1A: Sheriff’s department cannot engage in viewpoint discrimination by threatening Facebook users who post unfavorable comments.
Free Expression: the concerted effort by the Left and the Islamists to silence free speech threatens our Republic
1A,2A: NRA challenges Los Angeles ordinance requiring contractors to disclose ties to group
4A: DEA’s bulk data collection program on people who bought money counters led to the seizure of $50 million despite the fact the vast majority of purchasers were never shown to be connected to drug activity
Shame! - shame on Joe Biden for saying illegal aliens are already American citizens. Your citizenship obviously doesn’t mean anything to you, Joe.
Commerce Clause: Justice Department won’t appeal lower court decision blocking federal female genital mutilation prosecutions as unconstitutional (States, it’s up to you or we have sharia, it’s that simple.)
1A: Kentucky ultrasound informed-consent abortion law upheld over First Amendment objections by doctors (6th Circuit)
1A: Do we really want to go down the road of compelled speech in this country? We will if the jack-booted thugs have their way on transgenderism (video)
1A: “Fake News and the First Amendment: Free Speech Rules” (Volokh video)
2A: Sandy Hook gun manufacturer takes steps to appeal ruling federal immunity statute unavailable (argument made manufacturer broke state law by glorifying illegal uses for its products)
2A: East St. Louis Housing Authority agrees to allow public housing residents to possess guns
4A: ‘reverse location’ warrants which sweep up data for hundreds or thousands of cell phone users raise constitutional questions
Discrimination: landlords can lawfully decline Section 8 housing vouchers, despite disparate impact theory (disproportionate effect on minorities)
Trademarks based on some racial slurs are OK but others are beyond the pale, and now the Supreme Court is wrestling with whether the same should be true for swear words.
Economic Freedom: challenge mounted to Nashville probation on home-based businesses (piano lessons, recording studios, hair care, etc.)
The leading Muslim organization in Germany called on the government to appoint a Federal Commissioner to fight anti-Muslim sentiment in the country, including so-called ‘hate comments’ on the Internet. That would raise First Amendment concerns, if an Islamophobia czar were appointed in the United States, but we’re only talking about Germany - so no worries, right?
Let’s talk about two other things that happened closer to home this week. First, Democrats in Minnesota asked the legislature to appoint a statewide “Task Force on Islamophobia and Anti-Semitism” to be chaired by Keith Ellison, Minnesota’s Muslim Attorney General or someone appointed by him. Second, Michigan’s Attorney General announced plans to ramp up hate crime prosecutions there and the Civil Rights Department will be documenting hate incidents that - get this - don’t rise to the level of a crime or even a civil infraction. Michigan’s moves are based on a report from the financially self-interested and now-discredited Southern Poverty Law Center claiming to find a six percent rise in the number of hate and extremist groups in the state. Anti-sharia groups are on that list. How would you like to be in Michigan’s new hate speech database and have the government come to your door telling you that you need to get your mind right?
Michele Bachmann said she has no doubt the task force in Minnesota, if created, would recommend authoritarian measures to curb ‘hate speech’ in the state. The goal is the insertion of Islamic blasphemy law into the state code, she said. In case you don’t know, Islamic notions of blasphemy are very different from defamation law in America. In America, truth is generally a defense to a charge of defamation. But in Sharia law, blasphemy is whatever offends a Muslim. If you say, ‘Muhammad was a pedophile’, Muslims will take offense and you will have committed blasphemy, even it’s true. It’s the ultimate heckler’s veto - find one Muslim anywhere in the world who is offended by your speech and your speech is no longer protected. Also in America, under current law, hate speech is protected by the First Amendment. Adopt Sharia blasphemy law and you can pretty much say goodbye to free speech. Free speech advocates are worried that the task force will recommend legislation penalizing hate speech in Minnesota and adopting sharia speech codes for the state, pointing to probable members of the task force from CAIR, which has ties to terror, and Muslim Brotherhood front groups.
We have kind of a paradox at the moment. We’re living in a golden age of free speech, as far as court decisions go. There have been very strong First Amendment cases coming out of the Supreme Court in recent years - Citizens United and Janus, for example. At the same time, support for free expression in society overall is being attacked by Muslims, the SPLC, and others. Conservative speakers aren’t allowed on many campuses, and that’s just fine with a distressingly high percentage of college students. We either do a better job of educating people why we have the First Amendment, or we’ll have more moves like those in Michigan and Minnesota which would have government bureaucrats deciding the parameters of acceptable speech. We will have arrived in Germany, where the truth is now hate speech and can land you in jail.
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