Tag Archives: civil liberties

The Fourteenth Amendment

Here is the talk I will be delivering to the Danville Unitarians this morning. It’s longer than my usual posts, so–unless you feel the urge to visit or revisit the 14th Amendment– feel free to skip it!

_______________________________________

Thanks to our current political environment—and especially to an argument that Section 3 of that Amendment requires barring Donald Trump from the ballot—we’ve seen an explosion in references to the 14th Amendment to the U.S. Constitution. But the 14th Amendment has been incredibly important for a long time, for reasons having nothing to do with Section 3. Together with the 13th and 15th Amendments, the 14th is credited with strengthening and “reframing” the Constitution and Bill of Rights. Together, they are frequently referred to as our Second Founding.

It’s presumably due to that current interest that I was asked to talk about the 14th Amendment today, so you will get the equivalent of my class lecture on the subject. I apologize in advance…

The 13th Amendment, as you undoubtedly know, outlawed slavery, and the 15th forbid abridging a citizen’s right to vote “on account of race, color, or previous condition of servitude.” Together with the 14th, they are the Reconstruction Amendments.

Of the three, the 14th Amendment is the lengthiest and most ambitious. Thanks mainly to the Equal Protection clause, it is now considered to be a part of the Bill of Rights.

The first Section is the one with which most of us are familiar; It reads:

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 Congressman who drafted the 14th Amendment, John Bingham, was very clear that his intention was to make the Bill of Rights binding on the states. Most Americans don’t realize that, prior to passage of the 14th Amendment, the Bill of Rights limited only the federal government. Bingham insisted that his language—“privileges and immunities” encompassed the entire Bill of Rights, and made them binding upon the states, and the contemporaneous arguments for and against passage tended to focus on that stated outcome.

Nevertheless, after the 14th Amendment was passed, it took the Supreme Court a number of years and a collection of discrete cases to apply most of the constraints of the Bill of Rights against state and local government actors, a process called (for some reason) incorporation.

Prior to passage of the 14th Amendment, state and local officials could “establish” religions, prevent you from exercising your right to speak freely, engage in blatantly discriminatory behaviors and other activities that violated the first 8 Amendments of the Bill of Rights.

An important clause in Section One established birthright citizenship—which has recently become something of a flashpoint for the considerable number of racists and self-defined “patriots” who want to close America’s borders and prevent the children of immigrants from becoming American citizens. Since most, if not all of the people arguing against birthright citizenship are not descended from Native Americans, the hypocrisy is rather noticeable.

The Second Section of the Amendment is historically interesting, but generally obsolete—it forbids denying the right to vote to any “of the male inhabitants” of a state who have reached the age of 21 and are citizens. Since passage of that language, we’ve extended the vote to women and lowered the voting age to 18.

The Third Section of the 14th Amendment is the one that has recently become relevant to the current election cycle. It reads:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The Supreme Court of the State of Colorado concluded that the language of Section 3 precludes Donald Trump from appearing on Colorado’s ballot. That decision is on appeal to the U.S. Supreme Court, which will now have to decide to affirm or reject Colorado’s analysis–whether Section 3 bars Donald Trump from appearing on all the nation’s presidential ballots. It certainly seems straightforward; in order to evade the clear language of Section 3, the Court would have to find that the President wasn’t an “officer” of the United States, or that the provision isn’t what lawyers call “self-executing”—that is, that it requires Congress to pass a bill to make it operative. Neither argument passes the smell test. The Court could also find that Trump didn’t engage in insurrection, a finding which would be equally unpersuasive. Given the Justices’ performances at the oral argument on this case, I think we can safely assume that they will find a way to duck the clear implications of the Constitutional language.

Finally, Sections 4 and 5 confirm the validity of the national debt and authorize Congress to enforce the provisions of the 14th Amendment by “appropriate legislation.”

The most important operation of the 14th Amendment—at least in my opinion—is that it constitutionalized the Declaration of Independence’s promise of freedom and equality. Scholars refer to the Reconstruction Amendments as America’s “Second Founding,” because passage of the 13th, 14th and 15th Amendments transformed the nation’s charter from what was really an aggressively pro-slavery document into one that prohibited chattel slavery; it changed it from a document that was silent on the Declaration’s call for equality to one that granted equal citizenship to everyone born on American soil; and it changed the Constitution from a charter that stood aside while state governments abused individual rights to one that protected these rights against state government abuses.

A constitutional insistence on “equal protection of the law” effected a fundamental change in American politics and society. As historian Eric Foner has explained, no state gave Black people full legal equality before the Reconstruction era and the 14th amendment. Supreme Court decisions over the last century – outlawing racial segregation, decreeing “one person, one vote”, and many others – have rested on the 14th amendment. Foner and many other historians think the 14th Amendment should be seen as a form of “regime change” — an attempt to change the United States from a pro-slavery regime, which is what we had before the Civil War, to one based on equality, regardless of race. That’s a pretty fundamental change. Historian Heather Cox Richardson has written that the 14th Amendment established the power of the federal government to defend civil rights, voting, and government finances from a minority that had entrenched itself in power in the states and from that power base tried to impose its ideology on the nation.

The Fourteenth Amendment prevents government from denying citizens the “equal protection of the laws.” What constitutes “Equal Protection” can be complicated, because governments need to classify citizens for all kinds of perfectly acceptable reasons. For example, the law draws distinctions between children and adults, between motorists and pedestrians, and between smokers and non-smokers, and those classifications don’t run afoul of the 14th Amendment.

The Equal Protection doctrine is intended to prevent government from imposing inappropriate classifications; those based on criteria that are irrelevant to the subject of the law, or that unfairly burden a particular group.  The general rule is that a government classification must be rationally related to a legitimate government interest. A requirement that motorists observe a speed limit is clearly a classification related to government’s legitimate interest in public safety. A law that imposed different speed limits on African-American and Caucasian drivers just as clearly would be illegitimate.

Complicating it further, although laws can be discriminatory on their face (for example, a law saying only white males can vote); these days, laws meant to discriminate are usually crafted to achieve that result by design. That is, they are drawn to look impartial on their face, but to have a discriminatory effect. A rule that all firefighters must weigh over 180 pounds would prevent many more women from being firefighters than men, despite the fact that weight is not an indicator of the ability to handle a fire hose or climb a ladder.

There are also situations in which genuinely neutral laws are applied in a discriminatory fashion. The phrase “Driving While Black” grew out of statistics showing that some police officers were disproportionately stopping black motorists for speeding.

The courts will look more closely at classifications that burden constitutional rights, or disadvantage members of groups that have historically been subject to discrimination. Lawyers call that process of taking a closer look “heightened” or “strict” scrutiny.

The Equal Protection doctrine is intended to prevent government from disadvantaging individuals and minorities of whom majorities may disapprove. Equal Protection guarantees—like all the other provisions in the Bill of Rights—  apply only to government actions. Civil Rights statutes address private-sector discrimination. Here in Indiana, for example, our civil rights statutes don’t forbid discrimination on the basis of sexual orientation or gender identity, so unless you live in a city or town with a civil rights ordinance, private companies in your town can fire people for being gay, and restaurants can refuse to sell pizza to someone perceived to be gay.

Essentially, the Equal Protection Clause requires government to treat citizens as individuals, not as members of a group. American laws are supposed to be based upon a person’s civic behavior, not her gender, race or other identity. So long as we obey the laws, pay our taxes, and generally conduct ourselves in a way that doesn’t endanger or disadvantage others, we are entitled to full civic equality.  That guarantee of equal civic rights has unleashed the productivity of previously marginalized groups and contributed significantly to American prosperity. As we are seeing, it has also motivated a considerable backlash from people who see equality for “those people” as an attack on their “rightful” social privilege.

Critics of Equal Protection often argue that equality and liberty are at odds: that an individual’s liberty includes the right to dislike or disapprove of others and that true liberty would include the right to act on those negative opinions. What the 14th Amendment says, in essence, is: fine. Dislike Black people, or Jews or Gays. Don’t invite them to dinner. Tell your daughter not to date them. But you may not ask government to pass rules that discriminate against them or that prevent them from  participating as equals in the political system or civil society.

With that, I will conclude this admittedly very superficial description of the 14th Amendment. I’m happy to answer questions!

Comments

Allow Me To Repeat Myself…

In the wake of the Court’s ruling in Dobbs, several pundits have approved of the decision as a “return to federalism.” Earlier this year, I posted about America’s experience with federalism, and obviously, that analysis bears repeating.

The issue, of course, is “Which rules should be nationally-imposed, and which should be left to more local “laboratories of democracy”? Certainly, not all policy needs to be nationally uniform–there are plenty of areas where local control is appropriate. But questions about who is entitled to fundamental human rights–and what those rights are–clearly isn’t one of them.

Students who have been taught the actual history of the United States are aware of the multiple problems the country experienced under the extreme federalism of the Articles of Confederation; those problems were severe enough to prompt the replacement of the Articles with our current Constitution. In the (many) years since, however, we seem to have forgotten about the very negative consequences of national fragmentation.

The application of the Bill of Rights to state and local governments was meant to establish a national floor–to ensure that a citizen moving from say, New York to Indiana, would not thereby experience a reduction of her fundamental rights as an American citizen. Justice Alito’s evisceration of the substantive due process clause is–among other incredibly negative things– a step back toward the fragmentation of the Articles of Confederation.

Furthermore, modern technology and communication–and the needs of businesses serving a mobile population–have made uniformity imperative even for matters that were properly left to state and local governments in the 1800s.

As I’ve noted previously, the need to rationalize and unify large areas of the law gave rise to the work of the Uniform Law Commission. The Commission drafts and promotes state enactment of uniform laws in areas of state law where uniformity has been recognized to be both desirable and practical. Probably the best-known uniform law is the Uniform Commercial Code– a comprehensive set of laws governing all commercial transactions in the United States. (It has national application, but it isn’t a federal law–it was uniformly adopted by each state’s legislature. In that sense, it respected federalism.)

Obviously, commerce isn’t the only area where uniformity is “desirable and practical.” Federal action in the face of a pandemic would certainly seem to qualify, and before the incompetence and massive ignorance of the Trump administration, the federal government largely directed public health responses to threatened outbreaks.  Numerous health officials have addressed the disastrous results of Trump’s decision to leave COVID response to the states. It is not hyperbole to suggest that a more co-ordinated, federalized response wouldn’t just have saved lives, but in all likelihood would have cut short the period of most vulnerability.

No serious student of governance believes that, in a country as large and diverse as the United States, all decisions should be made at the federal level. The question with which we should be grappling is “which responsibilities are properly federal and which matters are properly left to state or local governments?”

What laws need to be uniform if we are to be the United States of America, rather than a haphazard collection of Red and Blue fiefdoms? It is incomprehensible to me that anyone would choose to leave basic civil liberties up to the states–that, after all, was precisely the “federalism” that led to the civil war.

Certainly, America’s division of jurisdiction among local, state and federal levels of government is still useful–state and federal governments really have no reason to assume responsibility for handing out zoning permits or policing domestic violence disputes, for example– but we need to recognize that many of our historic assignments of responsibility no longer make much sense. State-level management of elections, for example, was necessary in the age of snail-mail registration and index cards identifying voters; in the computer age, as we have seen, it’s an invitation to misconduct.

As a practical matter, federal programs have made a mockery of  the increasingly awkward pretenses of state “sovereignty” where none really exists. Think of federal highway dollars that are conditioned on state compliance with federally mandated speed limits. Or the myriad other “strings” attached to federal funding that remind state-level agencies who’s really in charge.

If we ever get serious about actually governing again, we should take a hard look at these divisions of responsibility, and recognize that some matters are genuinely local, some require national action, and still others are planetary and must be addressed globally. Climate change is the most obvious.

I’m willing to leave zoning decisions up to local municipalities, and a substantial portion of criminal justice measures up to the states. When it comes to fundamental rights and global threats, a phony and facile “respect for federalism” is both dishonest and suicidal.

Comments

Who Decides?

Can you stand a few more observations about the Supreme Court’s birth control decision and women’s reproductive rights in this, the 21st Century?

The amount of disinformation about abortion–and the use of that disinformation by cynical Republican operatives–is fairly widely known. I’ve previously quoted religious historian Randall Ballmer for the actual genesis of the “pro life” movement.

Ballmer points out that it wasn’t until 1979—a full six years after Roe—that evangelical leaders, goaded by Paul Weyrich, seized on abortion as “a rallying-cry to deny President Jimmy Carter a second term.” Being against abortion was “more palatable” than what was actually motivating the Religious Right, which was protection of the segregated schools they had established following the decision in Brown v. Board of Education.

Both before and for several years after Roe, evangelicals were overwhelmingly indifferent to the subject, which they considered a “Catholic issue.” In 1968, for instance, a symposium sponsored by the Christian Medical Society and Christianity Today, the flagship magazine of evangelicalism, refused to characterize abortion as sinful, citing “individual health, family welfare, and social responsibility” as justifications for ending a pregnancy. In 1971, delegates to the Southern Baptist Convention in St. Louis, Missouri, passed a resolution encouraging “Southern Baptists to work for legislation that will allow the possibility of abortion under such conditions as rape, incest, clear evidence of severe fetal deformity, and carefully ascertained evidence of the likelihood of damage to the emotional, mental, and physical health of the mother.” The convention, hardly a redoubt of liberal values, reaffirmed that position in 1974, one year after Roe, and again in 1976.

So much for the “moral outrage” that presumably prompted the movement.  A number of political scientists and sociologists attribute its continued salience to an equally unlovely motive: keeping those uppity women in their place: the kitchen and bedroom. (When women are able to plan their families and manage their reproduction, they can enter the workforce, and if necessary, leave abusive husbands.) 

Those pious concerns about women’s health have always been dishonest; abortion is far safer than childbirth. A recent study reported by the New Yorker further confirms that claims about later regrets or emotional problems following abortion are simply fabrications.

If there was any doubt about the pro-Republican, anti-woman animus motivating attacks on women’s reproductive autonomy, the Supreme Court’s birth control decision should dispel it. 

As both Justice Ginsberg and the New York Times Editorial Board pointed out, between 70,500 and 126,400 women will immediately lose access to no-cost contraceptive services.

The Trump administration has been attacking both the A.C.A. and access to birth control since the moment President Trump took office. On the latter front, its most successful effort before this week was to gut the nation’s decades-old family planning program, called Title X, in an explicit effort to cripple Planned Parenthood. All of the administration’s efforts on this front have most directly affected poor women and women of color.

As Nancy Papas noted, in a trenchant comment to my previous post on the subject, denying women access to birth control makes no sense (unless, of course, your goal is to erect barriers to female equality). Less birth control means more unwanted pregnancies and abortions, more unwanted children (and increased levels of child abuse). Employee health declines; employee absenteeism rises–and more children on a family plan means higher cost health insurance premiums.

There’s another cost that rarely is factored in: these decisions are “exceptions” to the American concept of liberty.

The Bill of Rights is often described as a list of decisions and behaviors that government must respect: individuals have the right to decide for ourselves what books we will read, what–if any–Gods we will worship, who we will marry and whether and how often we will procreate, among other things. The Courts have routinely referred to such decisions as “intimate” and ruled that government interference with them is illegitimate and unconstitutional. Those same Courts have carved out de jure exceptions for abortion, and now, what amounts to a de facto exception for birth control.

Here’s a thought: states with progressive legislatures (not Indiana, unfortunately) should partner with health insurance companies to establish a fund that would provide low-or-no cost birth control for women who work for these anti-woman “religious” companies. The women should apply directly, eliminating the need for the “religious” owners to be “complicit.” (I guess it doesn’t bother them to be “complicit” in worsening the health of women who take birth control medication for reasons other than contraception–but then, logic and honesty aren’t involved in these decisions.)

Here’s another thought: if America had a single-payer system like the 36 countries that pay less for health outcomes superior to ours, government wouldn’t allow employers to impose their religious beliefs on employees who don’t share them.

Comments

The Pandemic And The Constitution

Several faculty at the O’Neill School of Public and Environmental Affairs, where I teach, collaborated on a special summer school course investigating the challenges posed by the pandemic to our particular fields–criminal justice, disaster preparedness, non-profit organizations…and in my case, civil liberties.

Here’s an abbreviated (but still pretty long) version of my lecture.

The Coronavirus pandemic has raised a number of issues that are new or even unprecedented. One is a fundamental governance issue: what is the proper balance between government’s obligation to protect and the individual’s right to autonomy, or self-governance?

The rights guaranteed to individuals under the U.S. Constitution are civil liberties; they are guarantees against governmental infringement of our fundamental, human rights. Civil rights, on the other hand, are statutory rights against discriminatory behavior by private entities. The question we’re going to explore in this class is limited to civil liberties—specifically, how much additional latitude the Constitution gives government to limit individual rights in order to discharge its duty to protect our health and lives—civil liberties in the time of a pandemic.

There are a multitude of issues raised by government’s efforts to keep us safe and control the pandemic.

·      One of the most visible—and contentious—issues involves federalism. Federalism, as you know, is the structure whereby government jurisdiction, or authority, is divided between federal, state and local units of government. What is the role of the federal government in a pandemic? What powers and decisions are reserved to the states? In previous situations involving threatened pandemics, there was much more co-ordination, and most of the questions we now face didn’t arise. This time, however, there has been a great deal of public confusion over where various responsibilities lie; the President has asserted his authority to over-rule governors on several matters, but he has also disclaimed responsibility for tasks that he says are state responsibilities. Several of those statements are inconsistent with the Constitution, which vests primary responsibility with the states. As you consider America’s response to the COVID-19 pandemic, and the very uneven experiences of the states, you might also consider where America should place primary responsibility for pandemic response.

·      Another issue that has been debated is: What are the limits of civil disobedience and the First Amendment right to assembly during a pandemic? This issue arises in several ways: some citizens have protested state orders requiring masks and social distancing (and some of those protestors have been armed, which is disquieting). Those protests pale, however, before the hundreds of thousands of citizens who have participated in the widespread Black Lives Matter demonstrations following the murder of George Floyd. The states did not move to curtail those demonstrations on the basis of the threat to public health, and the data we now have suggests that those protests were not, in fact, a triggering event. The lack of spread has been attributed to the fact that protestors were outdoors, and a significant percentage of them wore masks.

·      Requirements to wear masks have generated especially nasty confrontations, with people comparing the requirements to “communism” and “attacks on the Second Amendment.” My own reaction to these assertions is based less on the Constitution—which I think pretty clearly allows such measures –and more on logic, or more properly, the lack thereof. The government can and does require you to wear a seat-belt; ordinances require that we refrain from smoking in public places. For that matter, government requires us to wear clothing—at least enough to cover our genitals—in public. It is illogical to obey these and other common mandates and yet claim that wearing a mask in order to abate a pandemic is somehow a new and offensive invasion of personal liberty. I will say that what I find offensive is the unwillingness of these people to wear a mask intended to prevent them from infecting others. They are either unbelievably selfish, or perhaps they believe, with the President, that the pandemic is a “hoax.”

·      So much for masks. What about the shutdowns, the “stay-in-place” orders? Here, the law seems pretty clear; ever since a 1905 case—Jacobsin v. Massachusetts—the Supreme Court has upheld the right of government to impose quarantines and require vaccinations. Government does have to demonstrate the reasonableness of those measures, but assuming it meets that burden, requirements for quarantines and vaccinations are clearly allowed.

·      What about interstate travel, which the Supreme Court has long held to be a fundamental right? We’ve seen some governors restricting people from entering their states from so-called “hot spots.” I am unaware of cases testing those restrictions.

·      Using cellphones for “contact tracing” has been met with considerable alarm from privacy advocates and organizations concerned with the level of government surveillance. That’s another area of legal ambiguity.

·      The right to vote is a critically-important constitutional right, and cases have already challenged restrictions on the availability of absentee ballots. (A related issue is the evident inability of many states to handle increased voting by mail—situations that may deprive people of their constitutional rights by reason of inadequate capacity to perform, rather than by intent.)

·      Several states have used pandemic restrictions to justify denying women’s constitutionally-protected reproductive rights, spawning litigation about the degree to which those restrictions can be imposed.

·      Both the right of Assembly and the Free Exercise Clause of the First Amendment have been cited by religious organizations—primarily churches—that have objected to limitations on public gatherings. (Medical scientists tell us that singing in a confined space is particularly dangerous.)

·      Then there are incarcerated persons, and would-be immigrants who are being detained at particular risk. At what point do the conditions of confinement rise to the level of “cruel and unusual punishment”?

·      A fascinating case that has been filed raises an increasingly important First Amendment Free Speech/Free Press issue: can sources of disinformation be held liable? The case is Washington League for Increased Transparency and Ethics v. Fox News. The plaintiff alleges that Fox News violated the state’s Consumer Protection Act and acted in bad faith, both by disseminating false information about the novel coronavirus through its television news broadcasts and by minimizing the danger posed by the virus as COVID-19 began to explode into a pandemic.

The Executive Director of the non-profit was quoted as saying that they aren’t trying to chill free speech, but that they believe the public was endangered by false and deceptive communications in the stream of commerce. She emphasized that there are a lot of people who listen to Fox News, and that Fox is not taking the recommendations of public-health officials seriously. She has asserted that “This lawsuit is about making sure the public gets the message this is not a hoax.”

I think it is highly unlikely that the Washington League will prevail, but the lawsuit raises some profound questions about the nature of speech that might be considered the mirror-image of “falsely shouting fire in a crowded theater.” In this case, Fox is accused of shouting “There’s no fire; stay in your seats” when, in fact, there is a fire.

For a more scholarly exposition of these and other civil liberties issues, click here.

Comments

The Pandemic And The Constitution

Faculty at the O’Neill School of Public and Environmental Affairs, where I teach, decided to put together a special course addressing issues raised by the pandemic. Those of us involved will each teach one class session; mine, unsurprisingly, will look at the civil liberties issues involved. The question I will explore is whether and how much government can limit individual rights in order to discharge its duty to protect citizens’ health and lives.

When I began to do some research in preparation for the class, I found the pandemic raising a more significant number of constitutional issues than I had anticipated. Many of those issues lack clear answers.

One of the most visible—and contentious—of those issues involves federalism. Federalism, as readers of this blog know, is the structure under which government jurisdiction is divided between federal, state and local units of government. What does the law say about the role of the federal government in a pandemic? What powers are reserved to the states?

There has been a great deal of public and official confusion over where various responsibilities lie; the President has asserted his authority to over-rule governors on several matters, and at the same time has disclaimed responsibility for tasks that he says are state responsibilities. Several of his statements have been inconsistent with the Constitution (I know–you’re shocked), which vests primary responsibility with the states, and anticipates support, co-ordination and assistance from the federal government.

Other questions: Does a pandemic allow government to impose more stringent limits on the First Amendment right to assemble? This issue arises in several ways: citizens have  protested state orders requiring masks and social distancing (some of those protestors have been armed). Those eruptions have been much smaller (and weirder) than the massive  Black Lives Matter demonstrations following the murder of George Floyd–but both challenge efforts to control the pandemic.

Then there are the shutdowns, the “stay-in-place” orders. Here, the law seems pretty clear; ever since a 1905 case—Jacobsin v. Massachusetts—the Supreme Court has upheld the right of government to impose quarantines and require vaccinations. (Government does have to demonstrate the reasonableness of those measures and their utility in ameliorating the threat of contagion.)

What about interstate travel, which the Supreme Court has long held to be a fundamental right? We’ve seen some governors restricting people from entering their states from so-called “hot spots.” Can they do that?

We are hearing a lot about new cellphone apps being developed to permit “contact tracing.” That technology has been met with considerable alarm from privacy advocates and organizations concerned about increasing government surveillance. The potential for misuse is high–and limitations on use of these technologies remain legally ambiguous.

The right to vote is obviously a critically-important constitutional right (not to mention a necessary guarantor of democracy) and the pandemic has further enabled efforts at vote suppression. Conflicts about the availability of absentee ballots for people fearful of the Coronavirus have already erupted, and efforts to expand vote-by-mail are being frantically resisted by Republicans. (The debate is further complicated by the evident inability of many states to handle increased voting by mail.)

Several states have used pandemic restrictions to justify denying women access to abortion. There is considerable debate about the degree to which those restrictions can be imposed, and a case from Texas (of course!) has been appealed to the Supreme Court.

The First Amendment’s right of Assembly and its Free Exercise Clause have both been cited by religious organizations—primarily churches—that are challenging limitations on in-person gatherings. In the cases of which I’m aware, the churches have lost.

Incarcerated persons, and those being detained by ICE face hugely increased medical risks and unique constitutional questions: what about an inmate’s right to consult with his or her lawyer? At what point do the conditions of confinement–the likelihood of contagion– rise to the level of “cruel and unusual punishment”?

A fascinating case that has recently been filed raises an increasingly important First Amendment Free Speech/Free Press issue: can sources of deliberate disinformation be held liable for damages? The case is Washington League for Increased Transparency and Ethics v. Fox News .The complaint alleges that Fox News violated the state’s Consumer Protection Act and acted in bad faith, both by disseminating false information about the novel coronavirus through its television news broadcasts and by minimizing the danger posed by the virus as COVID-19 began to explode into a pandemic.

It is highly unlikely that the Washington League will prevail, but the lawsuit raises some profound questions about the nature of speech that might be considered the equivalent of “falsely shouting fire in a crowded theater.”

And you thought the only thing to fear was the Coronavirus itself…

Comments