In a continuing effort to protect the privacy interests of gun owners, the National Rifle Association filed a brief in the U.S. Court of Appeals for the Second Circuit on Friday in the National Security Agency spying case.
The brief supports the American Civil Liberties Union’s request for reversal of a decision by the U.S. District Court for the Southern District of New York that deemed lawful all of the domestic telephone data gathered by former NSA contractor Edward Snowden.
In December, U.S. District Judge William H. Pauley III issued a 53-page decision that upheld that the NSA’s data collection program, which accumulates virtually all Americans’ phone records, did not violate the Fourth Amendment prohibition against unlawful search and seizure.
In its friend of the court brief, the NRA continued to argue that NSA data collection violates freedom of association protection guaranteed under the First Amendment.
“The mass surveillance program could allow identification of NRA members, supporters, potential members, and other persons with whom the NRA communicates, potentially chilling their willingness to communicate with the NRA,” the brief states.
In his original ruling, Pauley found that the claimed chilling effect of the NSA programs was too speculative to be deemed a substantial intrusion on First Amendment rights.
“There is no evidence that the Government has used any of the bulk [telephone] metadata it collected for any purpose other than investigating and disrupting terrorist attacks,” he wrote.
The NRA’s second point of contention centers on its belief that the data collection programs could undermine the privacy protection of gun owners. Current federal law prohibits the creation of a registry of firearms or firearm owners.
According to the NRA, the government maintains that its surveillance program collects only metadata, and the content of communications remains private.
The NRA counters that argument with a recent study in which two graduate students at Stanford University collected telephone metadata on volunteers over a few months and discovered exactly how much private information they were able to glean.
“We found that phone metadata is unambiguously sensitive, even in a small population and over a short time window,” Jonathan Mayer and Patrick Mutchler wrote in their study. “We were able to infer medical conditions, firearm ownership, and more, using solely phone metadata.”
On the specific issue of firearm ownership, the authors of the study determined that one of the volunteers likely was interested in firearms and specifically in AR-15 pattern rifles. The volunteer later confirmed that information to be true.
“This type of information is particularly sensitive at a time when some government officials at both the state and federal levels are showing increasing hostility toward individual gun ownership, and when interest in a particular type of firearm may bring an individual under close governmental scrutiny because of that firearm’s disfavored status,” the NRA wrote in a statement.
The Supreme Court is set to hear a case Tuesday that could weaken labor unions even further by overturning their efforts to organize home-care workers.
In what is being billed as a battle over First Amendment rights, the Harris V. Quinn case pits business leaders and conservative groups against unions and state governments, The Hill reports.
Businesses and conservatives argue the agreements between states and unions that taxpayer-funded home-care workers must pay union dues is a violation of their rights to free association under the Constitution.
But labor unions see the High Court challenge as the latest move to continue to destabilize the collective bargaining system, which could then affect the healthcare of the disabled and the elderly.
“This is what they are trying to do: weaken the union,” said Flora Johnson, executive chairwoman of Service Employees International Union Healthcare Illinois and Indiana. “Unions will survive but the people with disabilities and other medical disorders, they might never recover. That is why we are fighting.”
The test case stems from an executive order signed by Democratic Illinois Gov. Pat Quinn in 2009 making the SEIU the monopoly bargaining representative for home-care workers, who are usually self-employed and do not have to report to state officials.
Pamela Harris, who looks after her severely disabled son at home, brought the case along with seven other home-care providers, with the help of the National Right to Work Foundation. She argues that the cost of paying union dues means that she does not have enough money to cover her son’s medical expenses, says The Hill.
The key part of the argument is that a Supreme Court precedent says government employees who work in union shops must pay union dues. But the justices may decide that home-care workers are independent contractors and not state employees, and therefore cannot be forced against their will to pay for collective bargaining representatives.
The High Court decision could decimate the power of unions in Illinois and impact labor movements in some 10 other states that have similar arrangements between unions and local government.
According to The Hill, public sector unions have become stronger in recent years while overall union membership has declined. There were 7.3 million public sector union-affiliated workers in 2012 compared to seven million union members in the private workforce.
“This has the potential to be a very big case,” said Ilya Shapiro, a senior fellow in constitutional studies at the Cato Institute. “If [the deals are] stopped, that’s big in terms of the growth and power of public sector unions.”
Karen Harned, executive director of the National Federation of Independent Business (NFIB) Small Business Legal Center, said, “It’s a violation of the First Amendment, your right to freedom of association. These people all don’t want to be in a union and just because they participate in a public program doesn’t mean that they have to be.”
The Cato Institute and NFIB have teamed up to file an amicus brief in the case, The Hill noted.
The Journal says that there were 1.9 million home-care workers in the United States in 2010, with 475,000 of them unionized. That figure is expected to climb to over three million by 2020.
Liberty Counsel filed its opening brief at the federal court of appeals against the New Jersey ban on change therapy. A3371, signed by Gov. Chris Christie, prohibits licensed counselors from providing any counsel to change or reduce unwanted same-sex attractions, behaviors or identity to minors.
“A3371 is far more scandalous than the George Washington Bridge lane closure,” said Mat Staver, founder and chairman of Liberty Counsel. “Gov. Christie signed a bill that blocks licensed counselors from providing and young people from receiving any counsel to change unwanted same-sex attractions, behaviors, mannerisms or identity. This law is causing immediate harm to young people and to licensed counselors.”
“A3371 invades the sacrosanct relationship between counselor and client by prohibiting therapeutic conversations that assist a minor to reduce or eliminate unwanted same-sex attractions, behaviors, or identity while permitting conversations that affirm or approve them,” Staver told the court in the brief.
The district court found that the counseling of licensed New Jersey counselors is not entitled to anyFirst Amendment protection whatsoever, a notion that ignores long-established precedent of the Supreme Court.
“Far from being a First Amendment orphan, professional speech may be entitled to the strongest protection our Constitution has to offer,” said Staver.
“A3371 is a textbook example of viewpoint discrimination. The legislation explicitly prohibits licensed counselors from providing, and clients from receiving, any counsel to reduce or eliminate unwanted same-sex attractions, behavior or identity,” Staver told the court.
“Counselors can only affirm same-sex attractions even though the clients insist that such attractions are unwanted and they want to change. Depriving these young people of beneficial counsel of their choice is dangerous and is causing immediate harm to our clients,” concluded Staver.
According to the court, a Christian photographer (Elane Huguenin) violated New Mexico’s “non-discrimination” law by politely declining to photograph a same-sex commitment ceremony. Although the lesbian couple that brought the complaint easily found another photographer, Elane Photography now must pay nearly $7,000 in court costs for merely exercising its First Amendment rights.
The First Amendment of the U.S. Constitution was put in place to prevent exactly what the New Mexico Supreme Court has done: using the strong arm of government to force citizens to advocate (not just tolerate) ideas and behaviors that contradict their religious or moral convictions. Forcing people to support same-sex weddings or commitment ceremonies is forcing them to advocate same-sex behavior.
The First Amendment protects not only the right to free speech, but also the right not to be coerced into speech. In Wooley v. Maynard, former Chief Justice of the U.S. Supreme Court, Warren Burger wrote, “The right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all … A system which secures the right to proselytize religious, political and ideological causes must also guarantee the concomitant right to decline to foster such concepts.”
Even the U.N. Human Rights Committee recognizes a universal human right not to be coerced into advocating any idea. (You know our country is stuck on stupid when our courts are getting human rights lessons from the U.N.!)
Now, if you justify this decision because you disagree with Elane Photography’s religious or moral position, you’re not thinking like an American (or a U.N. person). Imagine a homosexual videographer being forced to video a speech that a conservative makes against homosexual behavior and same-sex marriage. Should that homosexual videographer be forced to do so? Of course not! Then why Elane Photography?
It is important to understand that Elane Photography was not refusing service because of the “sexual orientation” or sexual attractions of the couple. In fact, Elane Photography was happy to work with lesbian clients on other projects that did not involve advocating homosexual behavior (for example, taking professional head shots). In this case however, she declined service because she did not want to use her artistic talents to advocate sexual actions that went against her moral and religious beliefs.
But isn’t this just like a white photographer refusing to photograph a black wedding?
I know it’s very fashionable to compare homosexuality to race, but the comparison is completely fallacious. And as Chesterton said, “Fallacies do not cease becoming fallacies when they become fashions.”
First, homosexuality, unlike race, is a behavior, and statistically a harmful behavior. As a result, people have good moral reasons—even beyond religious beliefs—for opposing or not wanting to advocate homosexual behavior. But since race hurts no one, there is no moral justification for refusing to serve someone merely due to race.
Second, people are born into their race but not their sexual behavior. Sexual behavior is always a choice, race never is. You will find many former homosexuals, but you will never find a former African-American. (I know whom you’re thinking about. Let him rest in peace!).
Now, some believe there is a gay gene for homosexual attractions. But there’s not only no evidence for a gay gene, identical twin studies suggest it doesn’t exist. Yet even if we one day find some kind of genetic component to homosexual attractions, that would not mean that homosexual actions must be advocated by anyone. Being born with certain tendencies doesn’t necessarily justify acting on those tendencies. If it did, Elane Huguenin could have justified her actions by simply claiming that she was born with the anti-gay gene!
New Mexico Justice Richard C. Bosson justified his actions this way: “The Huguenins are free to think, to say, to believe, as they wish; they may pray to the God of their choice and follow those commandments in their personal lives wherever they lead. The Constitution protects the Huguenins in that respect and much more. But there is a price, one that we all have to pay somewhere in our civic life.”
I have a news flash for Justice Bosson: People in North Korea and Iran are free to think, believe and pray to the God of their choice too! But that’s not freedom of religion. The “free exercise” of religion means that you can actually live according to your religious beliefs. Justice Bosson and his misguided colleagues are essentially saying, “You can be a Christian as long as you don’t act like a Christian. It’s fine if your pastor or the Bible tells you to do something, as long as you don’t actually do it.” So we can’t obey God anymore? Is that the “price” we have to pay, Justice Bosson? Looks like the time for peaceful civil disobedience is here. Jail anyone?
Despite his inane ruling, Justice Bosson does seem to recognize the chilling implications of his decision. He wrote: “The Huguenins … now are compelled by law to compromise the very religious beliefs that inspire their lives. Though the rule of law requires it, the result is sobering. It will no doubt leave a tangible mark on the Huguenins and others of similar views.”
This is only one of many “tangible marks” that the mainstream media continues to ignore as they cheer on intolerance disguised as “gay rights.” There is a long and growing list of marks tattooed on people of faith and people of conscience who are being discriminated against beyond just the Huguenins. This is not tolerance or “non-discrimination.” It is exactly the opposite. It is totalitarianism—do what we say, or else!
Our country has a choice to make: Either maintain the value of freedom enshrined in our Constitution, or usurp the value of freedom by mandating conformity to the gay agenda. Unless the church and other freedom-loving people begin to speak up and get involved—and by that I mean in politics, education, the media and law—we will lose the very freedoms our founders spilled their blood to secure.
Yes, there is a price to pay. But the price isn’t giving up your constitutional rights as the New Mexico Supreme Court mandates. The price is getting involved to protect those rights.
P.S. Click here and go to the top of the list to hear my in-depth interview with Jordan Lorence, theAlliance Defending Freedom (ADF) attorney who argued the case for Elane Photography. You can also see Jordan interviewed by Shannon Bream here. ADF is considering an appeal to the United States Supreme Court.
Two other cases this year sparked a media outcry that the Justice Department had been overzealous in investigating government leaks and had infringed on free speech rights.
Prosecutors sought the testimony of reporter James Risen, author of a book, “State of War,” that contained information the government believed was leaked by former CIA officer Jeffrey Sterling.
In 2010, Sterling was indicted on 10 charges relating to Risen’s book, including unauthorized retention and communication of national defense information.
The following year, Holder authorized the Justice Department to issue a subpoena seeking Risen’s testimony. Risen challenged the subpoena, saying he could not be compelled to testify under the First Amendment and federal common law.
A three-judge panel ruled Friday there is no “reporter’s privilege” under the First Amendment’s guarantee of freedom of speech, meaning journalists do not receive special treatment.
“The reporter must appear and give testimony just as every other citizen must,” wrote Chief Judge William Traxler. “We are not at liberty to conclude otherwise.”
Judge Roger Gregory dissented, pointing out that the law is not clear on the issue. Some courts have found in the past that there are instances in which reporters can invoke a “qualified privilege,” which means they can refuse to testify.
“The paramount importance of the free press guaranteed by our Constitution compels me to conclude that the First Amendment encompasses a qualified reporter’s privilege,” Gregory wrote.
Risen’s attorney, Joel Kurtzberg, said he was disappointed with the ruling and that he and his client were “evaluating our next steps.” A spokesman said the Justice Department agreed with the decision and was considering how to proceed.
David Anderson, an expert in media law at the University of Texas at Austin, said the ruling was consistent with recent rulings in similar cases, which have indicated “a hardening of the judicial arteries toward the press.”
If Risen refuses to testify, he will almost certainly face imprisonment and “had better pack his toothbrush,” he said.
Theodore Boutrous, a lawyer in Los Angeles who has represented journalists in similar cases, said the ruling should prompt the Justice Department to back down on its request that Risen testify.
“One would hope they would look at this situation anew,” he said.
Various media organizations, including Reuters America LLC, which is owned by Thomson Reuters Corp, joined a friend-of-the-court brief in support of Risen.
Congress is considering a new media shield law, backed by President Barack Obama, that would enshrine legal protections for journalists. The Senate Judiciary Committee has scheduled a hearing on the bill next week.
Friday’s ruling came one week after the Justice Department issued new guidelines that would curb the ability of prosecutors to seize reporters’ records when investigating leaks.
In a recent case, prosecutors obtained a warrant to search Fox News correspondent James Rosen’s emails. He was named a “co-conspirator” in a federal leaks probe involving his reporting on North Korea.
In another case, the Justice Department seized Associated Press phone records as part of a probe into leaks about a 2012 Yemen-based plot to bomb a U.S. airliner.
Alliance Defending Freedom (ADF) asked the U.S. Supreme Court on Thursday to resolve the sharp difference between federal appeals courts on whether public schools must respect First Amendment freedoms when regulating student speech at graduation ceremonies.
“Public schools should encourage, not shut down, the free exchange of ideas,” says senior counsel David Cortman. “The personal well-wishes of a student at a graduation ceremony do not suddenly become unprotected by the First Amendment just because they mention God. Public school officials have no legitimate basis to shut down a student graduation speaker’s remarks just because they are motivated by the student’s religious, political or other personal beliefs. It is the student’s speech, not the school’s.”
The student body neutrally selected the student, the 8th-grade class co-president, to give the speech, which she wrote herself. The school did not provide any content or topic restrictions. The student ended her speech by expressing her hope that “God would bless and keep” her classmates as they moved on to high school. School officials thought her words, as written, “sounded ‘too religious,’” and required the removal of the words from the speech.
The petition explains that the 2nd, 9th, and 10th Circuits, however, have held such speech “is attributable to the school and that schools may censor religious views expressed in the speech to avoid controversy or assuage concerns over violating the Establishment Clause.”
“Silencing religious voices in public schools tells students that faith is something to be ashamed of,” adds senior legal counsel Jeremy Tedesco. “The First Amendment does not allow public schools to exclude students of faith from fully participating in important events like graduation by requiring them to put a lid on their expressions of faith. We hope the U.S. Supreme Court will grant review and clarify this important area of law.”
On Saturday, May 18, I was arrested on Aloma Avenue in Winter Park, Fla., a four-lane highway in a residential area, and charged with “picketing where prohibited.”
This is what happened.
The city of Winter Park passed an ordinance in August that appears to ban residential picketing in the city of Winter Park. At the commission meeting, Mayor Kenneth Bradley voted against the ordinance because he stated it was unconstitutional. Several attorneys attempted to enlighten the city commission regarding the errors in the ordinance. However, the city commission passed the new ordinance with one member, Tom McMacken, stating he did not care if it was unconstitutional.
The ordinance was adopted in response to a residential “Awareness Campaign” last August by a group of Christian evangelists who wanted to distribute literature and march through a neighborhood where the president and CEO of an abortion clinic lives. When the ordinance was challenged in court as written, the Winter Park city attorney explained that “picketing” is very narrowly defined in the ordinance. He said that picketing may still allow marching and speech within the buffer zones created by the ordinance. However, the attorneys challenging the ordinance prima facie (“at face value”) argued it is still confusing as written.
There is a group of pro-life evangelists from the Orlando, Fla., area that has been trying to seek clarification of what is allowed and is not allowed under the ordinance. On Saturday, May 18, a larger group of 25 in the area of Aloma Avenue were conducting a similar pro-life campaign as the one held last August. Some were testing various aspects of the ordinance. The enforcement has been confusing because the city’s officials make contradictory statements about the ordinance. The Winter Park city attorney has stated in court that picketers could move through the buffer zone, but city police officers have stated picketers could not enter the buffer zone.
As part of my vocation as a teacher and missionary, I work as a videographer and have produced several DVD presentations and other media on a variety of topics, including the “sanctity of life” issue. I was present not as a picketer on Aloma Avenue, but as a videographer trying to bring greater awareness to this issue. I was standing with a group of three people who were arrested.
I held a video camera, professor Pat McEwen read a blue leather-bound Bible, and Cheryl Bischoff had a sign that said “Celebrate Life” with a picture of some cute babies. Whether picketers could move through the buffer zone or not, I was not in violation of the ordinance under any interpretation because I was recording the video and was not picketing. Because an attorney had already challenged the ordinance prima facie in a lawsuit that was dismissed in March, the picketers were seeking clarification on what the anti-picketing ordinance actually does. The reason I had a video camera was to record the various contradictory statements by the police.
The ordinance was confusing even to the SWAT team that was called out to arrest us. (Winter Park utilizes a multi-city SWAT team that is on call on weekends for various reasons.) On May 18, we were doing the same thing as on the previous occasions when the police refused to threaten to arrest anyone. This time, the police overreacted to a peaceful gathering.
The SWAT officers could not find a copy of the ordinance in their system, which delayed our processing. They apologized for that repeatedly. One of them confided to us that he agreed with what we were doing in principle. The arrest report also contains “evidence” that does not apply to the terms of the ordinance, such as a complaint by neighbors who were not the target of any of the picketers. They also could not come up with a name for the law we violated, so they settled on “Picketing Where Prohibited.”
To add insult to injury, when the charges were entered into public record at the Orange County Clerk of Courts, each of us was mistakenly charged with prostitution. This is simply beyond words. Although the mistake was cleared up in time, this false information could be viewed on the Internet at the Clerk of Courts website. The “guilt by association” has been damaging to each of us.
In short, I was merely videotaping an event to record the statements of the police to see if they could clarify what appears to be an unconstitutional ordinance. I was not picketing under the definitions stated in the ordinance. The city of Winter Park and Orange County behaved in a confused and incompetent manner. In my view, each of us was arrested even though all three of us were obeying the ordinance. I believe it was necessary to video record the challenge, and it was our right to do so under the First Amendment.