First Amendment

  • February 7, 2017
    Guest Post

    by Marc D. Stern, General Counsel, AJC Global Jewish Advocacy

    It is not clear whether President Trump is proposing the wholesale repeal of the Johnson Amendment restricting the partisan activities of tax exempt not-for profits, or only as it applies to religious organizations. If the former, the proposal presents only questions of policy, there being no constitutional ban on religious voices speaking on political matters. If the latter, it is a flat out unconstitutional “naked preference” for religious speech.

    Tax exempt status (so-called 501(c)(3) status for the relevant section of the Internal Revenue Code) confers two benefits on not-for-profits. The lesser benefit: they do not pay taxes on their income; the more substantial—that donors get to deduct all (or part) of their contributions from their gross income.

    The Johnson Amendment conditions 501(c)(3) status on a beneficiary organization refraining from endorsing or opposing candidates for elective office. The ban is absolute (unlike the ban on legislative activity). The Amendment was the brainchild of then Sen. Lyndon Johnson, and served no high-minded purpose beyond shutting down right-wing organizational opposition to Sen. Johnson.

    For the most part, these restrictions are, and long have been, self-enforced by exempt organizations. Although there are borderline questions, for the most part the rules are clear and well understood. The IRS does not have the resources to enforce these restrictions, especially since enforcement would not produce revenue. Worse, enforcement inevitably would lead to changes of IRS partisanship.

  • January 20, 2017
    Guest Post

    by Jen Trudell, Recovering Finance Attorney, the University of Chicago Law School ‘03

    I am writing this from a hotel room in northern Virginia the night before the inauguration of Donald Trump as our 45th president. Instead of watching the inauguration, I will probably go to the hotel gym. I have never watched an inauguration, and besides, that is not why I came all the way from Chicago. I am here for the Women’s March on Washington on Saturday.

    Early this week a coworker asked me, with genuine curiosity, whether I thought marching would result in any policy changes. “Of course not”, I responded without pause. “Then why bother?” And that was a good question. 200,000 or 2,000,000 people could show up in D.C on Saturday to march and rally, and it will not change anything in Washington. Why bother coming all this way to do something that will be ignored (or, at most, tweeted about; SAD!) by our new president? I have thought about it and here are my two reasons:

  • November 30, 2016

    by Caroline Fredrickson

    President-elect Trump posted one outlandish tweet after another all the way to the White House. But his latest tweet on flag-burning topped most of the others.

    On Nov. 29, Trump tweeted:

    Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!

    The tone and text of the post read like something that a ruler from a bygone era without the checks and balances of the U.S. Constitution would say.  Most alarming is the sweeping and ominous part about “consequences.” Fortunately, a chorus of critics checked Trump.

    The very next day, both The New York Times and The Washington Post editorialized against Trump’s tweet.  The headline in the Post’s View summed up the problem, “In one tweet, Trump trashes two constitutional amendments.”

    In 140 characters, the next president knocked the First and 14th Amendments. The Supreme Court ruled almost three decades ago that burning a flag is protected speech under the First Amendment. Ironically, Trump’s model of the ideal Supreme Court Justice, the late Antonin Scalia, joined the majority decision in the 1989 case, Texas v. Johnson.

    Even Senate Majority Leader Mitch McConnell (R-Ky.) and House Majority Leader Kevin McCarthy (R-Calif.) chimed in right after the tweet to educate the public and president-elect about the First Amendment protection. Both members of Congress felt compelled to voice their support for this protected speech. McCarthy tried to shut down the debate by stating the unlikelihood of congressional action.

  • August 26, 2016
    Guest Post

    Thomas Wolf, Counsel, Democracy Program, Brennan Center for Justice at NYU School of Law

    *This post originally appeared on the Brennan Center for Justice website. 

    Partisan gerrymandering has long befuddled the courts. Although judges have recognized the harm of the practice, they have been unable to agree on a standard for policing it. But for the second time in a year, a partisan-gerrymandering challenge has cleared a critical hurdle.

    Earlier this week, voters challenging the drawing of Maryland’s 2011 congressional map got the green light to proceed with their First Amendment claim when a panel of three federal judges voted 2-1 to deny a motion to dismiss from Maryland’s attorney general. The voters — plaintiffs in the long-running case Shapiro v. McManus — will now be able to conduct discovery in preparation for a trial. The victory gives new momentum to a case that, along with a partisan-gerrymandering challenge pending in Wisconsin, could soon be headed for the U.S. Supreme Court, where the Justices will have their first opportunity in more than a decade to decide whether partisan gerrymandering violates the Constitution.

    The panel’s opinion focuses on the legal sufficiency of the plaintiffs’ complaint, which challenges the 2011 congressional redistricting plan enacted by the Maryland General Assembly. The plaintiffs alleged the legislature deliberately used information about voters’ partisan affiliations and voting histories to flip Maryland’s Sixth District from an otherwise reliably Republican stronghold into a safe Democratic seat, all in a successful attempt to punish Republican voters for casting ballots for their party’s candidates. On those facts, the panel ruled, the plaintiffs stated a claim that could go to trial, endorsing the plaintiffs’ theory that these kinds of districting machinations violate the First Amendment.

    The First Amendment problem with Maryland’s redistricting, the panel explained, was that it diluted the plaintiffs’ votes — that is, made their votes less powerful than other voters’ — by placing them in districts where they were outnumbered and repeatedly outvoted by Democrats, and did so simply because the plaintiffs had voted Republican in the past. That dilution was an example — albeit a novel one — of the kind of retaliation for political speech and association that the First Amendment bars.

  • August 12, 2016
    Guest Post

    by Tom Nolan, Associate Professor of Criminology, Merrimack College; 27-year veteran of the Boston Police Department 

    On Wednesday, August 10, the Department of Justice (DOJ) released the findings of its investigation into the Baltimore City Police Department (BPD) that followed troubling allegations raised in the aftermath of the death of Freddie Gray at the hands of the BPD in April of 2015. At that time (as well as long before and continuing to the present), there were consistent and hauntingly similar reports that the department had repeatedly and pervasively engaged in practices and policies that infringed upon the First and Fourth Amendment rights of community residents in Baltimore, and particularly residents in communities of color.

    The investigation by the DOJ found that the BPD “makes stops, searches and arrests without the required justification; uses enforcement strategies that unlawfully subject African Americans to disproportionate rates of stops, searches and arrests; uses excessive force; and retaliates against individuals for their constitutionally-protected expression.” The DOJ report found that the BPD engages in “pattern and practice” violations of the Fourth Amendment, specifically in “focusing enforcement strategies on African Americans, leading to severe and unjustified racial disparities in violation of Title VI of the Civil Rights Act and the Safe Streets Act.”

    In addition to engaging in repeated practices of using excessive force, the DOJ investigation reported that the BPD also “interact(s) with individuals with mental health disabilities in a manner that violates the Americans with Disabilities Act.” The BPD was also found to have engaged in a pattern and practice of repeatedly violating the rights of individuals and groups that are protected under the First Amendment, including freedom of speech and freedom of assembly.