Hello and welcome to Learning the Law, a podcast about all things legal with a focus on current events where we try to teach you things in an hour. My name is Ashley aka PhoenixNymphy and my co-host who is the man of the hour, my husband Ron. This podcast is purely educational and should not be taken as legal advice, this podcast does not create an attorney-client relationship, this podcast is based on his interpretation of relevant law. Any opinions expressed are the opinions of the individual making them and do not reflect the opinions of any firm, company, or other individuals. Ron is a licensed practicing attorney in the state of California.
Sponsor – This week the podcast is sponsored by Lawyer.com.With 10+ years of matching experience and technology development, Lawyer.com is proud to make thousands of lawyer connections each week. Lawyer.com connects users nationwide with lawyers in all areas of law. Please use our referral link to help out the podcast and find yourself a lawyer in your area https://www.dpbolvw.net/click-100464507-14095411
“Texas legislators may have found a creative way to prevent courts from reaching this law before it went into effect, but the law will likely get struck down soon enough. In the meantime, they have provided a blueprint for any other state that wants to infringe on constitutional rights. New York can pass a law allowing its citizens to sue anyone in the state who sells someone a firearm. California could create a damages award for $50,000 for anyone who sees someone praying on public land.”
“Texas legislators may have found a creative way to prevent courts from reaching this law before it went into effect, but the law will likely get struck down soon enough. In the meantime, they have provided a blueprint for any other state that wants to infringe on constitutional rights. New York can pass a law allowing its citizens to sue anyone in the state who sells someone a firearm. California could create a damages award for $50,000 for anyone who sees someone praying on public land.:”
SCOTUS will be seeing a case in Oct Dobbs V Jackson Women’s Health Organization
Mississippi – 15 week ban
Closing
Thank you so much for listening to learning the law. If you liked this podcast and want to hear more, don’t forget to like, subscribe, follow, and share in all your favorite places. You can find it hosted live on twitch at twitch.tv/phoenixnymphy and use the hashtag #learningthelaw on social media to follow in more places. You can find Ron on twitter at Necrokijo and Ashley at PhoenixNymphy. If you have any questions please tweet, comment, or email at twolazydogsmedia@gmail.com. This has been a Two Lazy Dogs production.
Hello and welcome to Learning the Law, a podcast about all things legal with a focus on current events where we try to teach you things in an hour. My name is Ashley aka PhoenixNymphy and my co-host who is the man of the hour, my husband Ron. This podcast is purely educational and should not be taken as legal advice, this podcast does not create an attorney-client relationship, this podcast is based on his interpretation of relevant law. Any opinions expressed are the opinions of the individual making them and do not reflect the opinions of any firm, company, or other individuals. Ron is a licensed practicing attorney in the state of California.
Sponsor – This week the podcast is sponsored by NordVPN. With more than 10 yrs of experience, NordVPN is a leading VPN provider. NordVPN gives you military-grade protection online, and you can access all your favorite sites without restriction. NordVPN never logs your activity when using their servers. You can always trust your privacy to NordVPN. Thank you NordVPN for sponsoring Learning the Law. If you use our link you can have access to all this and help out the podcast: https://www.anrdoezrs.net/click-100464507-14482597
Itinerary
Our Weeks
Questions from the audience (if there are any)
Topic of the week – How would you help your client?
“Kytch said in its lawsuit that Taylor had “designed flawed code that caused the machines to malfunction,” and said that this may have been deliberate.”
Closing
Thank you so much for listening to learning the law. If you liked this podcast and want to hear more, don’t forget to like, subscribe, follow, and share in all your favorite places. You can find it hosted live on twitch at twitch.tv/phoenixnymphy and use the hashtag #learningthelaw on social media to follow in Thank you so much for listening to learning the law. If you liked this podcast and want to hear more, don’t forget to like, subscribe, follow, and share in all your favorite places. You can find it hosted live on twitch at twitch.tv/phoenixnymphy and use the hashtag #learningthelaw on social media to follow in more places. We’re all on Twitter now @learningthelaw individually Ron – Necrokijo and me at PhoenixNymphy. If you have any questions please tweet, comment, or email at twolazydogsmedia@gmail.com. This has been a Two Lazy Dogs production.
Hello and welcome to Learning the Law, a podcast about all things legal with a focus on current events where we try to teach you things in an hour. My name is Ashley aka PhoenixNymphy and my co-host who is the man of the hour, my husband Ron. This podcast is purely educational and should not be taken as legal advice, this podcast does not create an attorney-client relationship, this podcast is based on his interpretation of relevant law. Any opinions expressed are the opinions of the individual making them and do not reflect the opinions of any firm, company, or other individuals. Ron is a licensed practicing attorney in the state of California.
Sponsor – This week the podcast is sponsored by Lawyer.com.With 10+ years of matching experience and technology development, Lawyer.com is proud to make thousands of lawyer connections each week. Lawyer.com connects users nationwide with lawyers in all areas of law. Please use our referral link to help out the podcast and find yourself a lawyer in your area https://www.dpbolvw.net/click-100464507-14095411
What does the 1st Amendment actually say: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof: or abridging the freedom of speech, or of the press; or the right of the people to peaceably to assemble, and to petition the Government for a redress of grievances
B. The right to peacefully assemble
The “right of the people peaceably to assemble, and to petition the Government for a redress of grievances” protects two distinct rights: assembly and petition. The Clause’s reference to a singular “right” has led some courts and scholars to assume that it protects only the right to assemble in order to petition the government. But the comma after the word “assemble” is residual from earlier drafts that made clearer the Founders’ intention to protect two separate rights.
Both rights have been at the heart of controversies for much of our country’s history, from picketing strikers in the 1930s to civil rights sit-ins in the 1960s and Black Lives Matter protests in the 2020s, from KKK rallies in the 1920s to white supremacist marches (and riots) in the 21st Century. But the right to gather with others isn’t limited to political protests. It can also include simply hanging out with friends in public.
While neither “assembly” nor “petition” is synonymous with “speech,” the modern Supreme Court treats both as subsumed within an expansive “speech” right, often called “freedom of expression.”
Assembly is the only right in the First Amendment that requires more than a lone individual for its exercise. One can speak alone; one cannot assemble alone. Moreover, while some assemblies occur spontaneously, most do not. For this reason, the assembly right extends to preparatory activity leading up to the physical act of assembling, protections later recognized by the Supreme Court as a distinct “right of association,” which does not appear in the text of the First Amendment.
The right of assembly often involves non-verbal communication (including the message conveyed by the very existence of the group). A demonstration, picket-line, or parade conveys more than the words on a placard or the chants of the crowd. Assembly is, moreover, truly “free,” since it allows individuals to engage in mass communication powered solely by “sweat equity.”
In 1876, the Supreme Court ruled in US v. Cruikshanks that Assembly meant a gathering related to a federal government purpose or grievance.
The right to assemble has been a crucial legal and cultural protection for dissenting and unorthodox groups. The Democratic-Republican Societies, suffragists, abolitionists, religious organizations, labor activists, and civil rights groups have all invoked the right to assemble in protest against prevailing norms.
When the Supreme Court extended the right of assembly beyond the federal government to the states in its unanimous 1937 decision, De Jonge v. Oregon, it recognized that “the right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.”
The Court further elaborated in Hague v. CIO, 307 U.S. 496 (1939)15 in which the Court struck down an ordinance that vested an uncontrolled discretion in a city official to permit or deny any group the opportunity to conduct a public assembly in a public place.
That means law enforcement may break up any gathering that has turned violent or raises a “clear and present danger” of violence or disorder (Cantwell v. Connecticut, 310 U.S. 296 (1940))
However, as part of a wave of anti-protest legislation that picked up steam in 2021, some states have passed laws criminalizing protests that block traffic, even temporarily. For instance, laws in Oklahoma and Florida make it a crime to obstruct the normal use of roadways, including by simply standing in the street. Those same laws also extended protections to drivers who hit protesters. (Okla. H.B. 1674 (2021); Fla. H.B. 1 (2021).) It’s not yet clear whether courts will find these laws to be constitutional.
In an attempt to mitigate surging infection and hospitalization rates during the surges in the Covid-19 pandemic, public officials issued emergency orders limiting the size of public gatherings and closures or restrictions on certain businesses. In response to those orders, residents, businesses, and other organizations filed lawsuits claiming that the restrictions violated their constitutional rights, including the right to gather. In many—but not all—of these cases, the lower courts denied the plaintiffs’ requests for injunctions to prevent enforcement of the restrictions, finding that the emergency orders met the requirements for content-neutral restrictions on the time, place, and manner of gathering (discussed below).
There hasn’t been a definitive appellate court ruling on the issue of whether these orders violated the right to gather. (The U.S. Supreme Court ruled in late 2020 and early 2021 that two states’ restrictions on attendance at religious services during the pandemic could not be enforced, but those rulings were based on freedom of religion rather than the right to gather.)
Some limitations:
The public square. There’s less leeway to restrict demonstrations and other gatherings in places that are traditionally considered “public forums” for free expression—such as sidewalks, parks, and public squares—than on other types of public property like military installations, prisons, courthouses, and airport terminals.
Size limits. A federal court struck down an ordinance that limited the size of most gatherings in front of New York City Hall and the adjacent plaza, except for city-sponsored public events. As the court pointed out, the ordinance wasn’t narrowly tailored to serve the city’s legitimate safety concerns, and it could allow city officials to stop people from gathering based on their point of view. (Housing Works, Inc. v. Safir, 101 F.Supp.2d 163 (S.D. N.Y. 2000).) However (as discussed above), some courts have looked more favorably at temporary, emergency restrictions on the size of public gatherings intended to limit the spread of Covid-19.
Permits. Generally, cities and other governmental bodies (like public universities) are allowed to require groups to get permits for demonstrations, parades, street festivals, and other large gatherings. But courts have struck down these requirements when they impose higher fees or other obstacles linked to the demonstrators’ controversial viewpoints and the expected response. (See, for example, Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123 (1992).)
Curfews. As a general rule, courts allow curfews—which usually restrict people’s right to gather at nighttime—when public officials have declared an emergency, the curfews are needed to keep order due to immediate threats to life or property, and the restrictions are temporary.
Buffer zones. When it comes to laws aimed at keeping anti-abortion demonstrators a certain distance away from clinic entrances and patients, the U.S. Supreme Court has allowed some buffer-zone restrictions while striking down others. The different outcomes usually turn on whether a law is designed to serve important public objectives (like protecting privacy and access to medical facilities) without putting too many limits on the rights of protestors (see, for instance, Hill v. Colorado, 530 U.S. 703 (2000) and McCullen v. Coakley, 573 U.S. 464 (2014).) Of course, different outcomes may also depend on the changing makeup of the Court.
Redress of grievances
The right to petition the government for redress of grievances means the right to ask a governmental body to solve a problem.
the right of petition has expanded. It is no longer confined to demands for “a redress of grievances,” in any accurate meaning of these words, but comprehends demands for an exercise by the government of its powers in furtherance of the interest and prosperity of the petitioners and of their views on politically contentious matters. The right extends to the “approach of citizens or groups of them to administrative agencies (which are both creatures of the legislature, and arms of the executive) and to courts, the third branch of Government. Certainly the right to petition extends to all departments of the Government. The right of access to the courts is indeed but one aspect of the right of petition.”
The right to petition includes under its umbrella the legal right to sue the government, and the right of individuals, groups and possibly corporations to lobby the government.
Sovereign Immunity
Closing
Thank you so much for listening to learning the law. If you liked this podcast and want to hear more, don’t forget to like, subscribe, follow, and share in all your favorite places. You can find it hosted live on twitch at twitch.tv/phoenixnymphy and use the hashtag #learningthelaw on social media to follow in more places. You can find Ron on twitter at Necrokijo and Ashley at PhoenixNymphy. If you have any questions please tweet, comment, or email at twolazydogsmedia@gmail.com. This has been a Two Lazy Dogs production.
Hello and welcome to Learning the Law, a podcast about all things legal with a focus on current events where we try to teach you things in an hour. My name is Ashley aka PhoenixNymphy and my co-host who is the man of the hour, my husband Ron. This podcast is purely educational and should not be taken as legal advice, this podcast does not create an attorney-client relationship, this podcast is based on his interpretation of relevant law. Any opinions expressed are the opinions of the individual making them and do not reflect the opinions of any firm, company, or other individuals. Ron is a licensed practicing attorney in the state of California.
Sponsor – This week the podcast is sponsored by NordVPN. With more than 10 yrs of experience, NordVPN is a leading VPN provider. NordVPN gives you military-grade protection online, and you can access all your favorite sites without restriction. NordVPN never logs your activity when using their servers. You can always trust your privacy to NordVPN. Thank you NordVPN for sponsoring Learning the Law. If you use our link you can have access to all this and help out the podcast: https://www.anrdoezrs.net/click-100464507-14482597
Itinerary
Our Weeks
Questions from the audience (if there are any)
From Troublemancer – Is it legal to for a coroner to exclude COVID-19 as cause of death
What does the 1st Amendment actually say: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof: or abridging the freedom of speech, or of the press; or the right of the people to peaceably to assemble, and to petition the Government for a redress of grievances
Alien and Sedition Acts
The Federalist party passed these acts in 1798 to stifle opposition to the party, and outlawed criticism of the President and Congress.
Civil War
During the Civil War, Abraham Lincoln, by executive order, outlawed correspondence with, or give intelligence to , the enemy, either directly or indirectly. Many journalists that had access to both sides of the war were imprisoned.
WWI
The Espionage Act of 1917 and the Sedition Act of 1918, which amended it, imposed restrictions on the press during wartime. The acts imposed a fine of $10,000 and up to 20 years’ imprisonment for those publishing “… disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States, or the flag …”[1] InSchenck v. United States (1919) the Supreme Court upheld the laws, setting the “clear and present danger” standard.Brandenburg v. Ohio (1969) revised the clear-and-present-danger test to the significantly less-restrictive “imminent lawless action” test.
Branzburg v. Hayes
Freedom of the press was described in 1972’sBranzburg v. Hayes as “a fundamental personal right”, not confined to newspapers and periodicals.[1] InLovell v. City of Griffin (1938),[2] Chief Justice Charles Evans Hughes defined the press as “every sort of publication which affords a vehicle of information and opinion.”[3] This right has been extended to newspapers, books, plays, movies, and video games.[4]
. Freedom of the press
New York Times v. Sullivan – Specifically, it held that if a plaintiff in a defamation lawsuit is a public official or person running for public office, not only must he or she prove the normal elements of defamation—publication of a false defamatory statement to a third party—he or she must also prove that the statement was made with “actual malice“, meaning that the defendant either knew the statement was false or recklessly disregarded whether or not it was true.[3][4]
Parody – Falwell v. Flynt In the ad, Falwell is quoted as saying, “We were drunk off our God-fearing asses on Campari…and Mom looked better than a Baptist whore with a $100 donation.” At the insistence of legal counsel, the group agreed to place at the bottom of the ad the words: “Ad parody. Not to be taken seriously.”
Thus while such a bad motive may be deemed controlling for purposes of tort liability in other areas of the law, we think the First Amendment prohibits such a result in the area of public debate about public figures.
Greenbelt Cooperative Publishing Association, Inc. v. Bresler
In 1970, the U.S. Supreme Court ruled that a news organization couldn’t be sued over the use of “rhetorical hyperbole”. The usage in question was when quoting eyewitnesses, but the court ruled that, even if it hadn’t, to call it libel “would subvert the most fundamental meaning of a free press”.
Obsidian Finance Group, LLC v. Cox
On 2014, blogger Crystal Cox accused Obsidian and Kevin D. Padrick of corrupt and fraudulent conduct. Although the court dismissed most of Cox’s blog posts as opinion, it found one post to be more factual in its assertions (and, therefore, defamatory).
It was ruled for the first time by the Court of Appeals for the Ninth Circuit,] that a blogger is entitled to the same free speech protection as a journalist and cannot be liable for defamation unless the blogger acted negligently. In the decision, journalists and bloggers are equally protected under the First Amendment[21] because the “protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others’ writings, or tried to get both sides of a story.”
Thank you so much for listening to learning the law. If you liked this podcast and want to hear more, don’t forget to like, subscribe, follow, and share in all your favorite places. You can find it hosted live on twitch at twitch.tv/phoenixnymphy and use the hashtag #learningthelaw on social media to follow in more places. You can find Ron on twitter at Necrokijo and Ashley at PhoenixNymphy. If you have any questions please tweet, comment, or email at twolazydogsmedia@gmail.com. This has been a Two Lazy Dogs production.
Hello and welcome to Learning the Law, a podcast about all things legal with a focus on current events where we try to teach you things in an hour. My name is Ashley aka PhoenixNymphy and my co-host who is the man of the hour, my husband Ron. This podcast is purely educational and should not be taken as legal advice, this podcast does not create an attorney-client relationship, this podcast is based on his interpretation of relevant law. Any opinions expressed are the opinions of the individual making them and do not reflect the opinions of any firm, company, or other individuals. Ron is a licensed practicing attorney in the state of California.
Thank you so much for listening to learning the law. If you liked this podcast and want to hear more, don’t forget to like, subscribe, follow, and share in all your favorite places. You can find it hosted live on twitch at twitch.tv/phoenixnymphy and use the hashtag #learningthelaw on social media to follow in more places. You can find Ron on twitter at Necrokijo and Ashley at PhoenixNymphy. If you have any questions please tweet, comment, or email at twolazydogsmedia@gmail.com. This has been a Two Lazy Dogs production.
Hello and welcome to Learning the Law, a podcast about all things legal with a focus on current events where we try and teach you things in an hour. My name is Ashley, aka PhoenixNymphy and my co-host who is the man of the hour, my husband Ron. This podcast is purely educational and should not be taken as legal advice, this podcast does not create an attorney-client relationship, this podcast is based on his interpretation of relevant law. Any opinions expressed are the opinions of the individual making them and do not reflect the opinions of any firm, company or other individuals. Ron is a licensed practicing attorney in the state of California.
Itinerary
Our Weeks
Questions from the audience
Topic of the week – 1st Amendment
Updates on the Supreme Court rulings
Cheerleader case
What does 1st Amendment actually say: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances
Free Exercise Clause
From the beginning, courts in the United States have struggled to find a balance between the religious liberty of believers, who often claim the right to be excused or “exempted” from laws that interfere with their religious practices, and the interests of society reflected in those very laws. Early state court decisions went both ways on this central question.
The Mormon dilemma
Did the Mormons have the right to practice polygamy?
The Supreme Court first addressed the question in a series of cases involving nineteenth-century laws aimed at suppressing the practice of polygamy by members of the Church of Jesus Christ of Latter-day Saints (LDS), also known as Mormons. The Court unanimously rejected free exercise challenges to these laws, holding that the Free Exercise Clause protects beliefs but not conduct. “Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.” Reynolds v. United States (1878). What followed was perhaps the most extreme government assault on religious freedom in American history. Hundreds of church leaders were jailed, rank-and-file Mormons were deprived of their right to vote, and Congress dissolved the LDS Church and expropriated most of its property, until the church finally agreed to abandon polygamy.
The belief-action distinction ignored the Free Exercise Clause’s obvious protection of religious practice, but spoke to the concern that allowing believers to disobey laws that bind everyone else would undermine the value of a government of laws applied to all. Doing so, Reynolds influenced the meaning of the Free ExercReynolds warned, “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”
ise Clause well into the twentieth century. In 1940, for example, the Court extended the Clause—which by its terms constrains only the federal government—to limit state laws and other state actions that burden religious exercise. Cantwell v. Connecticut (1940). Though it recognized that governments may not “unduly infringe” religious exercise, the Court reiterated that “[c]onduct remains subject to regulation for the protection of society,” citing Reynolds as authority. Similarly, the Court held in 1961 that the Free Exercise Clause did not exempt an orthodox Jewish merchant from Sunday closing laws, again citing Reynolds.
The Amish dilemna
Could the Amish have the right to stop sending their children to school after age 14
In the 1960s and early 1970s, the Court shifted, strengthening protection for religious conduct by construing the Free Exercise Clause to protect a right of religious believers to exemption from generally applicable laws which burden religious exercise. The Court held that the government may not enforce even a religiously-neutral law that applies generally to all or most of society unless the public interest in enforcement is “compelling.” Wisconsin v. Yoder (1972). Yoder thus held that Amish families could not be punished for refusing to send their children to school beyond the age of 14.
Although the language of this “compelling-interest” test suggested powerful protections for religion, these were never fully realized. The cases in which the Supreme Court denied exemptions outnumbered those in which it granted them. Aside from Yoder, the Court exempted believers from “availability for work” requirements, which denied unemployment benefits to workers terminated for prioritizing religious practices over job requirements. But it denied exemptions to believers and religious organizations which found their religious practices burdened by conditions for federal tax exemption, military uniform regulations, federal minimum wage laws, state prison regulations, state sales taxes, federal administration of public lands, and mandatory taxation and other requirements of the Social Security system. In all of these cases the Court found, often controversially, either that the government’s interest in enforcement was compelling, or that the law in question did not constitute a legally-recognizable burden on religious practice.
3. The Indiginous Dilemma
Do Native Americans have the right to use peyote in their religious rituals?
In 1990, the Supreme Court changed course yet again, holding that the Free Exercise Clause “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Employment Division v. Smith (1990). Though it did not return to the belief-action distinction, the Court echoed Reynolds’ concern that religious exemptions permit a person, “by virtue of his beliefs, to become a law unto himself,” contradicting “both constitutional tradition and common sense.” Any exceptions to religiously-neutral and generally-applicable laws, therefore, must come from the “political process.” Smith went on to hold that the Free Exercise Clause does not protect the sacramental use of peyote, a hallucinogenic drug, by members of the Native American Church.
Congress steps in
In 1993, overwhelming majorities in Congress voted to reinstate the pre-Smith compelling-interest test by statute with the Religious Freedom Restoration Act (RFRA). RFRA authorizes courts to exempt a person from any law that imposes a substantial burden on sincere religious beliefs or actions, unless the government can show that the law is the “least restrictive means” of furthering a “compelling governmental interest.”
In 1997 the Supreme Court held that Congress had constitutional authority only to apply RFRA to federal laws, and not to state or local laws. Congress then enacted a narrower law, the Religious Land Use and Institutionalized Persons Act (RLUIPA), which applies the compelling-interest test to state laws affecting prisoners and land use. RFRA and RLUIPA have afforded exemptions in a wide range of federal and state contexts—from kosher and halal diets for prisoners, to relief from zoning and landmark regulations on churches and ministries, to exemptions from jury service.
Although some exemption claims brought under these religious freedom statutes have been relatively uncontroversial—the Supreme Court unanimously protected the right of a tiny religious sect to use a hallucinogenic drug prohibited by federal law and the right of a Muslim prisoner to wear a half-inch beard prohibited by state prison rules
Current “religious liberty” rulings
The Court by a 5-4 vote excused a commercial family-owned corporation from complying with the “contraception mandate,” a regulation which required the corporation’s health insurance plan to cover what its owners believe are abortion-inducing drugs. Burwell v. Hobby Lobby Stores Inc. (2014). In the wake of Hobby Lobby and the Court’s subsequent determination that states may not deny gays and lesbians the right to civil marriage, state RFRAs have become a flashpoint in conflicts over whether commercial vendors with religious objections may refuse their products and services to same-sex weddings.
Besides RFRA and other exemption statutes, the Free Exercise Clause itself, even after Smith, continues to provide protection for believers against burdens on religious exercise from laws that target religious practices, or that disadvantage religion in discretionary, case-by-case decision making.
In Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993), for example, the Court unanimously struck down a local ordinance against the “unnecessary” killing of animals in a “ritual or ceremony”—a law that was drawn to apply only to a small and unpopular religious sect whose worship includes animal sacrifice.
The Court recently recognized that the Free Exercise Clause (along with the Establishment Clause) required a religious exemption from a neutral and general federal antidiscrimination law that interfered with a church’s freedom to select its own ministers. The Court distinguished Smith on the ground that it “involved government regulation of only outward physical acts,” while this case “concerns government interference with an internal church decision that affects the faith and mission of the church itself.” Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C. (2012).
The Cake Controversy
The Supreme Court upheld a baker’s right to refuse service to a same-sex couple looking to employ him to bae a wedding cake on the grounds of religious liberty.
This embolden others to dent services to same-sex couples. However, the Court rejected the appeal of a county workers who’s job it was to issue marriage licenses in a state where such marriage had be legalized. The government worker could not refuse to issue the license if there was no other worker in the department that would issue such.
Most recently the Court upheld the appeal o a Catholic adoption agency, giving them the right of refusal to same se couples based on religious liberty.
Supreme Court denied reviewing a case where a florist denied service to a same-sex cople and was fined by the State of Washngton.
CLOSING
Thank you so much for listening to Learning the Law. If you liked this podcast and want to hear more, don’t forget to like, subscribe, follow, and share in all your favorite places. You can find it hosted on twitch at twitch.tv/phoenixnymphy use the hashtag #learningthelaw on tiktok to follow more there. You can find Ron on twitter at Necrokijo and Ashley on most social media platforms at PhoenixNymphy. If you have any questions please tweet, comment, or email at twolazydogsmedia@gmail.com. This has been a Two Lazy Dogs production.
Hello and welcome to Learning the Law, a podcast about all things legal with a focus on current events where we try and teach you things in an hour. My name is Ashley, aka PhoenixNymphy and my co-host who is the man of the hour, my husband Ron. This podcast is purely educational and should not be taken as legal advice, this podcast does not create an attorney-client relationship, this podcast is based on his interpretation of relevant law. Any opinions expressed are the opinions of the individual making them and do not reflect the opinions of any firm, company or other individuals. Ron is a licensed practicing attorney in the state of California.
Itinerary
Our Weeks
Questions from the audience
Topic of the week – 1st Amendment
Updates on the Supreme Court rulings
Cheerleader case
What does 1st Amendment actually say: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof
Establishment Clause – Congress shall make no law respecting an establishment of religion
Why was this clause necessary?
Colonial History of Religion
a. Establishment of religious blocs backed by government
Puritans – New England
Church of England – South
Quakers and Amish – Pennsylvania
Catholics – Maryland
Numerous colonies had official church taxes that everyone had to pay, and some had laws compelling attendance at church. Clergy members were selected by governmental authorities.
England’s king was also head of its church and was a monarchy and a theocracy.
Constitutional Convention
The founding fathers had widespread agreement that there be no national church.
Post – Constitutional History
All states had abandoned state established churches by 1833.
In the 1940s the Supreme Court ruled that the Establishment Clause applied not just to Congress but also the individual states due to the 14th amendment.
14th Amend – All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The Four Types of Establishment Clause cases:
1. Aid to Religious Institutions
a. The contention:
(1) that the government must be neutral between religious and non-religious institutions that provide education or other social services; or
(2) that no taxpayer funds should be given to religious institutions if they might be used to communicate religious doctrine.
This has swung between the two positions over the years. Currently, the Court has upheld programs that give aid to educational or social programs on a neutral basis.
2. Government Sponsored Prayer
a. In public school settings, the court has been consistent in denying statutes authorizing staff to lead in prayer or bible reading. In other settings it has allowed legislative prayers – specifically because it was stepped in history, or at town meetings where prayers from all faiths would be accepted.
3. Accommodation of Religion
Hundreds of federal, state, and local laws exempt or accommodate religious believers or institutions from otherwise neutral, generally-applicable laws for whom compliance would conflict with religiously motivated conduct. Examples include military draft exemptions, kosher or halal meals for prisoners, medical neglect exemptions for parents who do not believe in medical treatment for their ill children, exemptions from some anti-discrimination laws for religious entities, military headgear requirements, and exemptions for the sacramental use of certain drugs. The Supreme Court has addressed very few of these exemptions
Two federal laws, the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA), provide broad-based statutory accommodations for religious practice when it conflicts with federal and certain state and local laws.
4. Government sponsored religious symbols
The cases involving governmental displays of religious symbols—such as Ten Commandment displays in public school classrooms, courthouses, or public parks; nativity scenes in courthouses and shopping districts; or crosses on public land—have generated much debate. The most prominent approach in more recent cases is called the “endorsement test”; it asks whether a reasonable observer acquainted with the full context would regard the display as the government endorsing religion and, therefore, sending a message of disenfranchisement to other believers and non-believers.
Separation of church and state
The phrase does not appear in the Constitution
The Court has declined to take “a rigid, absolutist view” of the separation of church and state.
In Lynch v. Donnelly (1984), the Court allowed display of a nativity scene surrounded by other holiday decorations in the heart of a shopping district, stating that it “engenders a friendly community spirit of goodwill in keeping with the season.”
But in County of Allegheny v. American Civil Liberties Union (1989), a different majority of Justices held that the display of a nativity scene by itself at the top of the grand stairway in a courthouse violated the Establishment Clause because it was “indisputably religious—indeed sectarian.”
In McCreary County v. American Civil Liberties Union (2005), the Court held that a prominent display of the Ten Commandments at the county courthouse, which was preceded by an official’s description of the Ten Commandments as the “embodiment of ethics in Christ,” was a religious display that was unconstitutional. The same day, it upheld a Ten Commandments monument, which was donated by a secular organization dedicated to reducing juvenile delinquency and surrounded by other monuments on the spacious statehouse grounds. Van Orden v. Perry (2005)
CLOSING
Thank you so much for listening to Learning the Law. If you liked this podcast and want to hear more, don’t forget to like, subscribe, follow, and share in all your favorite places. You can find it hosted on twitch at twitch.tv/phoenixnymphy use the hashtag #learningthelaw on tiktok to follow more there. You can find Ron on twitter at Necrokijo and Ashley on most social media platforms at PhoenixNymphy. If you have any questions please tweet, comment, or email at twolazydogsmedia@gmail.com. This has been a Two Lazy Dogs production.
Hello and welcome to Learning the Law, a podcast about all things legal with a focus on current events where we try and teach you things in an hour. My name is Ashley, aka PhoenixNymphy and my co-host who is the man of the hour, my husband Ron. This podcast is purely educational and should not be taken as legal advice, this podcast does not create an attorney-client relationship, this podcast is based on his interpretation of relevant law. Any opinions expressed are the opinions of the individual making them and do not reflect the opinions of any firm, company or other individuals. Ron is a licensed practicing attorney in the state of California.
Itinerary
Our Weeks
Questions from the audience
Topic of the week – 1st Amendment
Updates on the Supreme Court rulings
What does 1st Amendment actually say: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances
Who can and can’t make the laws
Although the First Amendment says “Congress,” the Supreme Court has held that speakers are protected against all government agencies and officials: federal, state, and local, and legislative, executive, or judicial. The First Amendment does not protect speakers, however, against private individuals or organizations, such as private employers, private colleges, or private landowners. The First Amendment restrains only the government.
d. What constitutes speech?
The Supreme Court has interpreted “speech” and “press” broadly as covering not only talking, writing, and printing, but also broadcasting, using the Internet, and other forms of expression. The freedom of speech also applies to symbolic expression, such as displaying flags, burning flags, wearing armbands, burning crosses, and the like.
E. restrictions on speech due to content
The Supreme Court has held that restrictions on speech because of its content—that is, when the government targets the speaker’s message—generally violate the First Amendment. Laws that prohibit people from criticizing a war, opposing abortion, or advocating high taxes are examples of unconstitutional content-based restrictions. Such laws are thought to be especially problematic because they distort public debate and contradict a basic principle of self-governance: that the government cannot be trusted to decide what ideas or information “the people” should be allowed to hear.
F. There are generally three situations in which the government can constitutionally restrict speech under a less demanding standard.
In some circumstances, the Supreme Court has held that certain types of speech are of only “low” First Amendment value and can be restricted, such as:
a.Defamation: False statements that damage a person’s reputations can lead to civil liability (and even to criminal punishment), especially when the speaker deliberately lied or said things they knew were likely false. New York Times v. Sullivan (1964).
b. True threats: Threats to commit a crime (for example, “I’ll kill you if you don’t give me your money”) can be punished. Watts v. United States (1969).
c. “Fighting words”: Face-to-face personal insults that are likely to lead to an immediate fight are punishable. Chaplinsky v. New Hampshire (1942). But this does not include political statements that offend others and provoke them to violence. For example, civil rights or anti-abortion protesters cannot be silenced merely because passersby respond violently to their speech. Cox v. Louisiana (1965).
d. Obscenity: Hard-core, highly sexually explicit pornography is not protected by the First Amendment. Miller v. California (1973). In practice, however, the government rarely prosecutes online distributors of such material.
e. Child pornography: Photographs or videos involving actual children engaging in sexual conduct are punishable, because allowing such materials would create an incentive to sexually abuse children in order to produce such material. New York v. Ferber (1982).
f. Commercial advertising: Speech advertising a product or service is constitutionally protected, but not as much as other speech. For instance, the government may ban misleading commercial advertising, but it generally can’t ban misleading political speech. Virginia Pharmacy v. Virginia Citizens Council (1976).
Outside these narrow categories of “low” value speech, most other content-based restrictions on speech are presumptively unconstitutional. Even entertainment, vulgarity, “hate speech” (bigoted speech about particular races, religions, sexual orientations, and the like), blasphemy (speech that offends people’s religious sensibilities), and violent video games are protected by the First Amendment. The Supreme Court has generally been very reluctant to expand the list of “low” value categories of speech.
The government can restrict speech under a less demanding standard when the speaker is in a special relationship to the government. For example, the speech of government employees and of students in public schools can be restricted, even based on content, when their speech is incompatible with their status as public officials or students. A teacher in a public school, for example, can be punished for encouraging students to experiment with illegal drugs, and a government employee who has access to classified information generally can be prohibited from disclosing that information.Pickering v. Board of Education (1968).
The government can also restrict speech under a less demanding standard when it does so without regard to the content or message of the speech. Content-neutral restrictions, such as restrictions on noise, blocking traffic, and large signs (which can distract drivers and clutter the landscape), are generally constitutional as long as they are “reasonable.” Because such laws apply neutrally to all speakers without regard to their message, they are less threatening to the core First Amendment concern that government should not be permitted to favor some ideas over others. Turner Broadcasting System, Inc. v. FCC (1994). But not all content-neutral restrictions are viewed as reasonable; for example, a law prohibiting all demonstrations in public parks or all leafleting on public streets would violate the First Amendment. Schneider v. State (1939).
Courts have not always been this protective of free expression. In the nineteenth century, for example, courts allowed punishment of blasphemy, and during and shortly after World War I the Supreme Court held that speech tending to promote crime—such as speech condemning the military draft or praising anarchism—could be punished. Schenck v. United States (1919). Moreover, it was not until 1925 that the Supreme Court held that the First Amendment limited state and local governments, as well as the federal government. Gitlow v. New York (1925). But starting in the 1920s, the Supreme Court began to read the First Amendment more broadly, and this trend accelerated in the 1960s.
CLOSING Thank you so much for listening to Learning the Law. If you liked this podcast and want to hear more, don’t forget to like, subscribe, follow, and share in all your favorite places. You can find it hosted on twitch at twitch.tv/phoenixnymphy use the hashtag #learningthelaw on tiktok to follow more there. You can find Ron on twitter at Necrokijo and Ashley on most social media platforms at PhoenixNymphy. If you have any questions please tweet, comment, or email at twolazydogsmedia@gmail.com. This has been a Two Lazy Dogs production.
Hello and welcome to Learning the Law, a podcast about all things legal with a focus on current events where we try and teach you things in an hour. My name is Ashley, aka PhoenixNymphy and my co-host who is the man of the hour, my husband Ron. This podcast is purely educational and should not be taken as legal advice, this podcast does not create an attorney-client relationship, this podcast is based on his interpretation of relevant law. Any opinions expressed are the opinions of the individual making them and do not reflect the opinions of any firm, company or other individuals. Ron is a licensed practicing attorney in the state of California.
Itinerary
Our Weeks
Questions from the audience
Topic of the week – Supreme Court Docket
California v Texas
Another challenge to the Affordable Care Act. Congress got rid of the tax penalty in 2017. The existence of that mandate was the reasoning of the Supreme Court previously as to why the Act was constitutional. Now that the mandate is gone, plaintiffs are alleging the Act is now unconstitutional.
B. Bronovich v. DNC
At issue are bans in Arizona against ballot harvesting and voting in the wrong precinct. Could raise the bar for challenges to voter suppression laws under Section 2 of the Voting rights Act of 1965.
Section 2 prohibits voting practices that “result[] in a denial or abridgment of the right * * * to vote on account of race or color [or language-minority status],” and it states that such a result “is established” if a jurisdiction’s “political processes * * * are not equally open” to members of such a group “in that [they] have less opportunity * * * to participate in the political process and to elect representatives of their choice.” 52 U.S.C. 10301. […] Subsection (b) states in relevant part: A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.[79][80]
C. Fulton v. City of Philadelphia
Fulton v. City of Philadelphia involves a Catholic social-services agency that refused to comply with Philadelphia’s laws against anti-LGBTQ discrimination in adoption placements made subsequent to a city contract.
The New York Timessuggests the Fulton decision could continue the judicial march toward a separate, parallel set of rules for those claiming religious grounds for discrimination:
The justices’ questions during oral arguments seemed to point to a ruling in favor of the Catholic agency … That would restrict the impact of the 2015 ruling establishing a right to same-sex marriage, making clear that LGBTQ Americans could not expect the same protections as other groups. It would also raise questions about whether the newly conservative court might one day revisit that 2015 ruling.
If Justice Neil Gorsuch writes the opinion in Fulton, look out. He has quickly become the Court’s chief champion of “religious liberty,” defined as focusing on the right to fully exercise one’s faith as opposed to the right to be free of state-supported religious teachings. That’s despite the great notoriety he gained from writing a 2020 opinion that said LGBTQ workers are protected by federal anti-discrimination laws (a matter of statutory interpretation in which Gorsuch followed the plain-meaning “textualist” doctrines of Justice Antonin Scalia).
D, Mahanoy Area School District v. B.L.
involves Brandi Levy, a Pennsylvania high-school cheerleader penalized by her school after she posted a profane Snapchat tirade complaining about her failure to make the varsity squad. Existing precedents drawing a bright line between censorship of on-campus and off-campus utterances, and of expressions which are “disruptive” of school communities, don’t seem to apply very clearly. The case has created some conflict between points of view that are usually aligned, as Reuters points out:
Many schools and educators, supported by President Joe Biden’s administration, have argued that ending their authority over students at the schoolhouse gates could make it harder to curb bullying, racism, cheating, and invasions of privacy — all frequently occurring online.
The American Civil Liberties Union, representing Levy, has argued that students need protection from censorship and monitoring of their beliefs.
Levy won decisively in the Third Circuit Court of Appeals, but it’s unclear how the Supreme Court will rule.
CLOSING Thank you so much for listening to Learning the Law. If you liked this podcast and want to hear more, don’t forget to like, subscribe, follow, and share in all your favorite places. You can find it hosted on twitch at twitch.tv/phoenixnymphy use the hashtag #learningthelaw on tiktok to follow more there. You can find Ron on twitter at Necrokijo and Ashley on most social media platforms at PhoenixNymphy. If you have any questions please tweet, comment, or email at twolazydogsmedia@gmail.com. This has been a Two Lazy Dogs production.
Hello and welcome to Learning the Law, a podcast about all things legal with a focus on current events where we try and teach you things in an hour. My name is Ashley, aka PhoenixNymphy and my co-host who is the man of the hour, my husband Ron. This podcast is purely educational and should not be taken as legal advice, this podcast does not create an attorney-client relationship, this podcast is based on his interpretation of relevant law. Any opinions expressed are the opinions of the individual making them and do not reflect the opinions of any firm, company or other individuals. Ron is a licensed practicing attorney in the state of California.
Itinerary
Our Weeks
Questions from the audience
Topic of the week – Gerrymandering
What is Gerrymandering?
To gerrymander is to manipulate the boundaries of an election district so as to advantage one party.
How do the districts get redrawn?
Every 10 years, based on the new census data, districts in each state get redrawn.In the majority of states, the redrawing of district boundaries is in the power of the state legislature. In these states, there will be gerrymandering. In New York, the lawmakers and governor signed off district maps in 2012 that, said the New York Times, “were carefully designed to keep the legislators safely in their jobs.” In Florida earlier this year, a judge ruled that the Republicans had illegally redrawn the state’s congressional districts in a way that “made a mockery” of fairness and ordered two districts to be redrawn. In an extreme example, in North Carolina in 2012 the Democrats won 51 percent of the House vote but only four of thirteen representatives.
What is the effect?
The effect of gerrymandering is to dilute the votes of those that the party in power does not want to see. This is one reason why people believe their vote does not count. This in turn leads to low voter turnout. When the turnout is low, it is the motivated voter groups that get to push their agendas in government.
Are there any solutions?
Reform would therefore depend on Congress imposing a fair method of redistricting on the states. My recommendation would be a federal law with three main components: a set of rules and principles for the drawing of district borders, nonpartisan redistricting commissions in each state, and a federal commission of oversight that would also serve as the institution of appeal.
CLOSING Thank you so much for listening to Learning the Law. If you liked this podcast and want to hear more, don’t forget to like, subscribe, follow, and share in all your favorite places. You can find it hosted on twitch at twitch.tv/phoenixnymphy use the hashtag #learningthelaw on tiktok to follow more there. You can find Ron on twitter at Necrokijo and Ashley on most social media platforms at PhoenixNymphy. If you have any questions please tweet, comment, or email at twolazydogsmedia@gmail.com. This has been a Two Lazy Dogs production.
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