1st amend bak

<font size="4" face="Times New Roman">no lnx</font><div><font size="4" face="Times New Roman">
</font></div><div><div><font size="4" face="Times New Roman">1stamend819</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">nb i broke 2 with intercept code</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman"></font></div><div><font size="4" face="Times New Roman">new 919</font></div><div><font size="4" face="Times New Roman">
</font></div><div><div><font size="4" face="Times New Roman"><span times="Times" new="New" roman="Roman" font-size="font-size" large="large" style="background-color: rgb(255, 255, 255);">=</span></font></div><div><span times="Times" new="New" roman="Roman" font-size="font-size" large="large" style="background-color: rgb(255, 255, 255);"><a href="https://insideclimatenews.org/news/16092019/oil-port-protesters-charged-texas-fossil-fuel-infrastructure-law-pipelines-greenpeace-houston"><font size="4" face="Times New Roman">https://insideclimatenews.org/news/16092019/oil-port-protesters-charged-texas-fossil-fuel-infrastructure-law-pipelines-greenpeace-houston</font></a></span></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman" style="background-color: rgb(255, 255, 102);">A&nbsp;&nbsp;group of activists who shut down one of the nation's largest oil ports by hanging off a bridge over the Houston Ship Channel have been charged under a new Texas law that imposes harsh penalties for disrupting the operations of fossil fuel infrastructure.</font></div><div class="content" style="box-sizing: inherit;"><div class="field field-name-body field-type-text-with-summary field-label-hidden" style="box-sizing: inherit;"><div class="field-items" style="box-sizing: inherit;"><div class="field-item even" property="content:encoded" style="box-sizing: inherit;"><p style="box-sizing: inherit; margin: 0px 0px 1.5em; padding: 0px;"><font size="4" face="Times New Roman" style="background-color: rgb(255, 255, 102);">The charges could present the first test for a&nbsp;<a href="https://insideclimatenews.org/news/22082018/pipeline-protest-laws-felony-free-speech-arrests-first-amendment-oklahoma-iowa-louisiana" style="box-sizing: inherit; text-decoration-line: none; font-weight: bold;">wave of similar state laws</a>&nbsp;that have been enacted around the country over the past three years in response to&nbsp;<a href="http://insideclimatenews.org/tags/dakota-access-pipeline" style="box-sizing: inherit; text-decoration-line: none; font-weight: bold;">high-profile protests against pipelines</a>&nbsp;and other energy projects.</font></p><p style="background-color: rgb(255, 255, 255); box-sizing: inherit; margin: 0px 0px 1.5em; padding: 0px;"><font size="4" face="Times New Roman">More than two-dozen Greenpeace activists were arrested in Harris County after a number of them dangled from a bridge on Sept. 12&nbsp;holding banners with the aim of blocking oil and gas tankers from passing through a busy shipping channel below.</font></p><p style="background-color: rgb(255, 255, 255); box-sizing: inherit; margin: 0px 0px 1.5em; padding: 0px;"><font size="4" face="Times New Roman"><b>The&nbsp;<a href="https://capitol.texas.gov/tlodocs/86R/billtext/pdf/HB03557F.pdf#navpanes=0%20https://capitol.texas.gov/BillLookup/Text.aspx?LegSess=86R&Bill=HB3557" style="background-color: transparent; box-sizing: inherit; text-decoration-line: none;">Texas law</a>&nbsp;they were charged under was based on a&nbsp;<a href="https://www.alec.org/model-policy/critical-infrastructure-protection-act/" style="background-color: transparent; box-sizing: inherit; text-decoration-line: none;">model bill</a>&nbsp;promoted by the American Legislative Exchange Council, an industry-backed group.</b></font></p><p style="box-sizing: inherit; margin: 0px 0px 1.5em; padding: 0px;"><font size="4" face="Times New Roman" style="background-color: rgb(255, 255, 102);">Lawmakers in at&nbsp;<a href="http://www.icnl.org/usprotestlawtracker/?location=&status=&issue=6&date=&type=" style="box-sizing: inherit; text-decoration-line: none; font-weight: bold;">least 16&nbsp;</a><a href="http://www.icnl.org/usprotestlawtracker/?location=&status=&issue=6&date=&type=" style="box-sizing: inherit; text-decoration-line: none; font-weight: bold;">states</a>&nbsp;have introduced versions of the bill over the past three years. Seven states have enacted them as law, according to the International Center for Not for Profit Law, and Iowa and&nbsp;<a href="https://insideclimatenews.org/news/28032019/pipeline-protest-crackdown-state-law-legislation-south-dakota-conspirators-riot-boosting" style="box-sizing: inherit; text-decoration-line: none; font-weight: bold;">South Dakota</a>&nbsp;have enacted different bills with similar aims. The U.S. Department of Transportation earlier this year also&nbsp;<a href="https://www.phmsa.dot.gov/news/protecting-our-infrastructure-pipelines-and-enhancing-safety-act-2019-section-section-analysis" style="box-sizing: inherit; text-decoration-line: none; font-weight: bold;">proposed that Congress enac</a><a href="https://www.phmsa.dot.gov/news/protecting-our-infrastructure-pipelines-and-enhancing-safety-act-2019-section-section-analysis" style="box-sizing: inherit; text-decoration-line: none; font-weight: bold;">t</a>&nbsp;similar language into federal law.</font></p><p style="background-color: rgb(255, 255, 255); box-sizing: inherit; margin: 0px 0px 1.5em; padding: 0px;"><font size="4" face="Times New Roman">The bills create harsh criminal penalties for people who trespass on pipelines or other "critical infrastructure" facilities, and several of them allow for steep fines of up to $1 million for organizations that support people who violate the laws.</font></p><p style="box-sizing: inherit; margin: 0px 0px 1.5em; padding: 0px;"><font size="4" face="Times New Roman" style="background-color: rgb(255, 255, 102);">The South Dakota law, passed in anticipation of protests against the Keystone XL pipeline, had a different twist. It created a way for the state or companies to seek damages from anyone who advises or encourages a person who engages in a "riot," defined as use of force or violence by three or more people acting together. Environmental groups sued, and on Sept. 18, a federal judge&nbsp;<a href="https://www.aclu.org/legal-document/dakota-rural-action-v-noem-order-granting-motion-preliminary-injunction" style="box-sizing: inherit; text-decoration-line: none; font-weight: bold;">temporarily blocked</a>&nbsp;the state from enforcing that part of&nbsp;<a href="https://insideclimatenews.org/news/28032019/pipeline-protest-crackdown-state-law-legislation-south-dakota-conspirators-riot-boosting" style="box-sizing: inherit; text-decoration-line: none; font-weight: bold;">the law</a>. The judge wrote that the plaintiffs are likely to prevail on at least some of their claims.</font></p><p style="background-color: rgb(255, 255, 255); box-sizing: inherit; margin: 0px 0px 1.5em; padding: 0px;"><font size="4" face="Times New Roman">Oil and gas industry groups have&nbsp;<a href="https://insideclimatenews.org/news/22082018/pipeline-protest-laws-felony-free-speech-arrests-first-amendment-oklahoma-iowa-louisiana" style="box-sizing: inherit; background-color: transparent; text-decoration-line: none; font-weight: bold;">lobbied in favor of the bills</a>, part of an effort to ratchet up pressure on protesters.</font></p><div class="media media-element-container media-image_centered_medium" style="background-color: rgb(255, 255, 255); box-sizing: inherit; max-width: 648px; margin: 0.25em auto;"><figure id="file-273236" itemscope="itemscope" itemtype="http://schema.org/ImageObject" class="file file-image file-image-png" style="box-sizing: inherit; max-width: 100%; margin: 0px 0px 1.5em;">[map]</figure></div><p style="background-color: rgb(255, 255, 255); box-sizing: inherit; margin: 0px 0px 1.5em; padding: 0px;"><font size="4" face="Times New Roman">Environmental and civil liberties advocates have argued that the bills are an effort to stifle free speech and legitimate protest, noting that people who trespass can already be charged under existing laws.</font></p><p style="background-color: rgb(255, 255, 255); box-sizing: inherit; margin: 0px 0px 1.5em; padding: 0px;"><font size="4" face="Times New Roman">"This is a bullying tactic that serves the interests of corporations at the expense of people exercising their right to free speech," said Tom Wetterer, general counsel of Greenpeace USA, in a statement.</font></p><p style="box-sizing: inherit; margin: 0px 0px 1.5em; padding: 0px;"><font size="4" face="Times New Roman" style="background-color: rgb(255, 255, 102);">In Texas,&nbsp;<b>26 people who were charged under the new law in connection with the bridge protest could face two years in prison and fines of up to $10,000</b>, according to Travis Nichols, a&nbsp;<b>Greenpeace spokesman. The organization itself could face a fine of up to $500,000 under the new state law,</b>&nbsp;though Nichols said it has not been charged. Many of the protesters also face federal charges.</font></p><p style="background-color: rgb(255, 255, 255); box-sizing: inherit; margin: 0px 0px 1.5em; padding: 0px;"><font size="4" face="Times New Roman">The Harris County District Attorney's Office did not immediately respond to questions for this article. Sean Teare, a Harris County prosecutor,&nbsp;<a href="https://www.reuters.com/article/us-houstonshipchannel-closure/greenpeace-members-face-federal-state-charges-in-houston-protest-idUSKCN1VY1EX" style="box-sizing: inherit; background-color: transparent; text-decoration-line: none; font-weight: bold;">told Reuters</a>, "This action cost our community many, many millions of dollars in lost commerce."</font></p><div class="media media-element-container media-image_centered_medium" style="background-color: rgb(255, 255, 255); box-sizing: inherit; max-width: 648px; margin: 0.25em auto;"><figure id="file-273234" itemscope="itemscope" itemtype="http://schema.org/ImageObject" class="file file-image file-image-jpeg with-caption" style="box-sizing: inherit; max-width: 100%; margin: 0px 0px 1.5em;"><figcaption class="field field-name-field-image-caption field-type-text-long field-label-hidden" style="box-sizing: inherit; padding: 2em; line-height: 1.6; border-right: 1px solid rgb(231, 231, 231); border-bottom: 1px solid rgb(231, 231, 231); border-left: 1px solid rgb(231, 231, 231); border-image: initial; border-top: none;"><div class="field-items" style="box-sizing: inherit;"><p style="box-sizing: inherit; margin: 0px; padding: 0px;"><font size="4" face="Times New Roman">[pix By hanging from a bridge over the Houston Ship Channel, Greenpeace protesters shut down traffic to the oil port ahead of a Democratic presidential primary debate in Houston on Sept. 12. Credit: Greenpeace</font></p></div></figcaption></figure></div><p style="background-color: rgb(255, 255, 255); box-sizing: inherit; margin: 0px 0px 1.5em; padding: 0px;"><font size="4" face="Times New Roman">The charges appear to be the first under any of the new laws targeting fossil fuel infrastructure protesters.</font></p><p style="background-color: rgb(255, 255, 255); box-sizing: inherit; margin: 0px 0px 1.5em; padding: 0px;"><font size="4" face="Times New Roman">The first "critical infrastructure" bill was<a href="https://insideclimatenews.org/news/22082018/pipeline-protest-laws-felony-free-speech-arrests-first-amendment-oklahoma-iowa-louisiana" style="box-sizing: inherit; background-color: transparent; text-decoration-line: none; font-weight: bold;">&nbsp;enacted in Oklahoma</a>&nbsp;in 2017 as activists there were gearing up to fight plans for an oil pipeline. While more than a dozen people&nbsp;<a href="https://insideclimatenews.org/news/24082018/pipeline-protests-new-louisiana-law-activist-arrests-oil-bayou-bridge-energy-transfer-partners" style="box-sizing: inherit; background-color: transparent; text-decoration-line: none; font-weight: bold;">have been arrested</a>&nbsp;under the law in Louisiana, as part of protests against an oil pipeline there, none has been charged yet. Several of the people arrested there&nbsp;<a href="https://ccrjustice.org/sites/default/files/attach/2019/05/White%20Hat%20v%20Landry%20Complaint.pdf" style="box-sizing: inherit; background-color: transparent; text-decoration-line: none; font-weight: bold;">have joined a constitutional challenge</a>&nbsp;to Louisiana's law, which is pending in federal court, said Bill Quigley, a lawyer representing some of the activists.</font></p><p style="background-color: rgb(255, 255, 255); box-sizing: inherit; margin: 0px 0px 1.5em; padding: 0px;"><font size="4" face="Times New Roman">The Texas protest was timed with the Democratic presidential debate in Houston. But it also came less than two weeks after the new law, signed by Gov. Greg Abbott in June, went into effect.</font></p><p style="background-color: rgb(255, 255, 255); box-sizing: inherit; margin: 0px 0px 1.5em; padding: 0px;"><font size="4" face="Times New Roman">Nicole Debord, Greenpeace's legal counsel, said in an email that the group was waiting to see what evidence prosecutors provide, but that the law is "ripe for challenge."</font></p></div></div></div></div><div class="tagged-with" style="box-sizing: inherit; text-transform: uppercase; margin-bottom: 1em; background-color: rgb(255, 255, 255);"><label style="box-sizing: inherit; display: block; line-height: 1.2;"><font size="4" face="Times New Roman">PUBLISHED UNDER:</font></label><div class="field field-name-field-topics field-type-taxonomy-term-reference field-label-hidden" style="box-sizing: inherit;"><div class="field-items" style="box-sizing: inherit;"><font size="4" face="Times New Roman" /><div class="field-item even" style="box-sizing: inherit; display: inline-block; padding-right: 0.5em;"><font size="4" face="Times New Roman"><a href="https://insideclimatenews.org/topics/activism" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="" style="box-sizing: inherit; background-color: transparent; text-decoration-line: none;">ACTIVISM</a></font></div>&nbsp;<div class="field-item odd" style="box-sizing: inherit; display: inline-block; padding-right: 0.5em;"><a href="https://insideclimatenews.org/topics/oil-spillspipelines" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="" style="box-sizing: inherit; background-color: transparent; text-decoration-line: none;">OIL SPILLS/PIPELINES</a></div></div></div><div class="field field-name-field-tags field-type-taxonomy-term-reference field-label-hidden" style="box-sizing: inherit;"><div class="field-items" style="box-sizing: inherit;"><font size="4" face="Times New Roman" /><div class="field-item even" style="box-sizing: inherit; display: inline-block; padding-right: 0.5em;"><font size="4" face="Times New Roman"><a href="https://insideclimatenews.org/tags/climate-litigation" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="" style="box-sizing: inherit; background-color: transparent; text-decoration-line: none;">LITIGATION</a></font></div>&nbsp;<div class="field-item odd" style="box-sizing: inherit; display: inline-block; padding-right: 0.5em;"><a href="https://insideclimatenews.org/tags/dakota-access-pipeline" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="" style="box-sizing: inherit; background-color: transparent; text-decoration-line: none;">DAKOTA ACCESS PIPELINE</a></div></div></div></div><div><span times="Times" new="New" roman="Roman" font-size="font-size" large="large" style="background-color: rgb(255, 255, 255);"><font size="4" face="Times New Roman"></font></span></div></div><div><font size="4" face="Times New Roman"></font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">ORIGINAL</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">see 2 for newer</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">see also commercial speech</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;see also corporate personhood</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">press suppression, activist?</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">also 1st Congress shall make no law respecting an establishment of religion. . . .[arizona anti-gay]; hobby lobby&nbsp; http://www.freespeechforpeople.com/node/665</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">we could have a whole category for cigarette labels?</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">tobacco litigation?</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">=</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">=</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">jeffery stone schenk v US 100 anniv</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Free speech century</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">https://kpfa.org/episode/letters-and-politics-june-3-2019/</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">sedition acts and censorship</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">abrams led to brandenberg v ohio</font></div><div><font size="4" face="Times New Roman">=</font></div><div><font size="4" face="Times New Roman">=</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">great website:</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">https://www.climateliabilitynews.org/2018/01/16/exxon-continues-first-amendment-defense-climate-fraud-probes/</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;Karen Savage</font></div><div><font size="4" face="Times New Roman">Exxon continues to cry foul, alleging that two state attorneys general are violating its First Amendment right to express its&nbsp; opinion on climate change.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In a brief filed last week in New York, attorneys for Exxon once again asserted that that investigations by Massachusetts Attorney General Maura Healey and New York Attorney Eric Schneiderman are part of a politically motivated conspiracy against the company and an attempt to silence the oil giant through intimidation.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The filing was the latest effort by Exxon to thwart investigations by the attorneys general into possible climate change-related deception by the company. It follows a filing by the AGs in December urging a dismissal of Exxon’s suit against them, based on the company’s recent announcement that it would begin considering climate risks on its business in disclosures to its stockholders. Healey and Schneiderman contend that announcement equates to an admission that Exxon has not been forthcoming about those risks as the AGs have alleged.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">But Exxon continues to insist that the investigations are an abuse of Healey’s and Schneiderman’s political positions and are violations of the oil giant’s First, Fourth and Fourteenth amendment rights.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In November, New York U.S. District Court Judge Valerie Caproni ordered each side to submit written arguments in the case, which was first filed by Exxon in the U.S. District Court for the Northern District of Texas in June 2016, but has since been transferred to New York.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In its most recent brief, attorneys for Exxon said the attorneys general are targeting Exxon with “burdensome” and “harassing” investigations because of the company’s views on climate change. Attorneys also link Healey and Schneiderman to climate activists who Exxon says are seeking to “harass perceived political opponents” and “delegitimize” Exxon.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Attorneys for Healey call Exxon’s allegations absurd, particularly considering Exxon has taken the public stance of supporting the overwhelming scientific consensus on climate change.&nbsp;&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“Exxon asserts that Attorney General Healey has joined in an illegal conspiracy to violate Exxon’s rights because she does not agree with Exxon’s views about climate change. Yet Exxon also states that it now endorses climate science, the existence of climate change, and efforts to combat it—consistent with Attorney Healey’s position,” Healey’s attorneys wrote in a recent brief.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Schneiderman’s attorneys said that for Exxon to prevail on a free speech allegation, it must plead and prove its right to free speech has been violated, something they contend Exxon has not done.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">They point to Exxon’s own court filings, in which the company said it speaks publicly about the risks of climate change and shares its perspective on climate change on the company’s website.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In a website posting last week, Exxon denounced a recent climate change-related lawsuit filed against it by New York City and reiterated its climate change perspective.A video shared on the company’s Twitter page carried a similar message.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“These public statements demonstrate that, far from being muzzled, Exxon regularly engages in corporate advocacy concerning climate change,” wrote attorneys for Schneiderman, adding that a state investigation is not a violation of Exxon’s constitutionally protected rights.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Schneiderman also said that fraudulent statements are not protected by the First Amendment.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Exxon fired back, alleging that not only are its statements protected but also the company has been harmed by having to endure the “burden and expense” of the investigations.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“Based on the record before this Court, there is no basis to classify ExxonMobil’s speech on climate change and climate policy as anything but fully protected by the First Amendment,” wrote attorneys for Exxon.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">But attorneys for Healey said Exxon’s recent filing with the Securities and Exchange Commission that promised climate risk disclosure raises further questions about the company’s truthfulness.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">That decision came after 62 percent of Exxon shareholders voted in favor of requiring the company to produce a report outlining financial risks to the company from global efforts to prevent temperatures from rising more than 2 degrees Celcius.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“This filing makes clear that, at a minimum, Exxon’s prior disclosures to investors, including Massachusetts investors, may not have adequately accounted for the effect of climate change on its business and assets,” attorneys for Healey wrote.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Exxon Will Continue to Fight Climate Probes by State Attorneys General</font></div><div><font size="4" face="Times New Roman">Exxon's First Amendment Claims in Climate Fraud Case Draw Judge's Skepticism</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Federal Judge Dismisses Exxon Lawsuit Challenging State Climate Probes</font></div><div><font size="4" face="Times New Roman">&nbsp; =</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The Corporate “Free Speech” Racket</font></div><div><font size="4" face="Times New Roman">How corporations are using the First Amendment to destroy government regulation.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">by Haley Sweetland Edwards</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">http://washingtonmonthly.com/magazine/janfeb-2014/the-corporate-free-speech-racket/</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">=</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman"></font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Corporations like Exxon are using spurious free speech claims to fend off regulation</font></div><div><font size="4" face="Times New Roman">Updated by Jeff Clements and John Coates&nbsp; Feb 14, 2017, 8:40am EST</font></div><div><font size="4" face="Times New Roman">http://www.vox.com/the-big-idea/2017/2/14/14601932/exxon-first-amendment-free-speech-citizens-global-warming</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Why is the attorney general of Massachusetts, Maura Healey, being forced to justify to a Texas judge why and how she is doing her job?</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In the latest instance of the corporate takeover of the First Amendment — and other constitutional rights — Exxon Mobil, the world’s largest oil and gas corporation, has invented a constitutional right to obstruct state investigations into allegations of fraud.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Investigations by the Massachusetts and New York attorneys general began late last year after the Los Angeles Times reported that Exxon scientists and executives have known for decades about the connection between fossil fuel consumption and the likelihood of catastrophic changes in the Earth’s atmosphere and climate.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The report alleged that as early as the 1980s, Exxon scientists were warning the company in internal communications that global climate change could "indeed be catastrophic (at least for a substantial fraction of the earth's population)." According to the journalists’ report, Exxon’s internal teams used that information for purposes of assessing the potential for profitable investment in new oil exploration and production. Yet these were the same climate models that Exxon “dismissed as unreliable and based on uncertain science” in statements to investors, consumers, and the general public The attorneys general embarked on investigations on behalf of their citizens, asking whether Exxon was guilty of selling products and equity while concealing information about their risks.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The similarity of these allegations to the illegal conspiracy of the tobacco industry — a cover-up of internal corporate knowledge about deadly consequences of continued consumption of its products — did not escape notice. In January 2016, the Department of Justice asked the FBI to investigate whether Exxon should be prosecuted under the federal Racketeer Influenced and Corrupt Organizations Act, as the tobacco industry was. The investigations by the Massachusetts and New York attorneys general, focusing on whether Exxon had been forthright in its disclosures to investors, soon followed.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Given identified sources and specific studies cited in news reports, it is not surprising that chief law enforcement officers of federal and state governments would investigate. Indeed, it would be extremely troubling if they did not.But rather than show that the allegations of investor and consumer fraud are baseless, Exxon Mobil is misusing the Constitution to continue to conceal what it knew about the connection between catastrophic climate change and continued fossil fuel use, and when.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">It is not uncommon, of course, for companies to resist subpoenas from attorneys general on a variety of legal grounds. For example, Exxon could have filed a motion in Massachusetts asking a judge to set aside the subpoena on the grounds that it was overly broad, and arguing that the investigation exceeded the jurisdiction of the attorney general. (In fact, Exxon did just that, and lost.)</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Until fairly recently, no US court would have entertained free speech claims by a corporation that wanted to strike down regulation</font></div><div><font size="4" face="Times New Roman">But Exxon has gone much further. It has filed a federal “civil rights” lawsuit in its home court of Texas against the New York and Massachusetts attorneys general. The multibillion-dollar global corporation claims that the state investigations violate a previously unrecognized corporate right under the Constitution both to “speak” and to “not speak” about climate change any way it wants, however deceptive that speech may be.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">This is where the Supreme Court’s decision in Citizens United v. Federal Election Commission is taking the country. That 2010 ruling is infamous for opening the floodgates of big, dark money in our elections by deciding that any limits on supposedly “independent” political ads violate the speech rights of corporations, unions, and billionaires. What is less well-known about Citizens United is how radically it empowers corporations to misuse the First Amendment in other ways — ways we now see playing out in the Exxon case, and elsewhere.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Citizens United was the capstone on a remarkable series of cases, dating only to the 1970s, that revolutionized the application of the First Amendment in the corporate context. Very few people realize just how quickly this constitutional revolution has occurred; very few people realize that American corporations thrived for the first two centuries of American history with virtually no First Amendment protections.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In the early 20th century, First Amendment cases involving firms tended to involve media companies, as when Louisiana Gov. Huey Long imposed special taxes on newspapers (a clear attempt to punish them). It was generally assumed that the “speech” of business corporations was no more free from court scrutiny than the language of their contracts or their SEC filings.</font></div><div><font size="4" face="Times New Roman">
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</font></div><div><font size="4" face="Times New Roman">That finding was then broadened and expanded in National Bank of Boston v. Bellotti (1978), which held that corporations can contribute to ballot initiatives, and again in Central Hudson Gas & Electric Corp. v. Public Service Commission (1980), which asserted that a utility could run advertisements promoting the use of electricity. Those two cases continue to be cited in almost all commercial speech cases — and they are cited more and more frequently. Citizens United affirmed those cases and extended them to campaign finance laws.After his appointment to the high court in 1971, however, Justice Lewis F. Powell Jr., a former business lawyer who ardently believed that corporate America was being undermined by the public’s support for reformers like Ralph Nader, helped reinvent the Court’s doctrine in this area. In Virginia State Pharmacy Board v. Virginia Citizens Consumer Council (1976), the Court said, on First Amendment grounds, that the state could not forbid pharmacists from advertising prescription drug price — a remarkable departure from precedent.</font></div><div><font size="4" face="Times New Roman">Despite the “free speech” rhetoric, corporations are not simply seeking to offer opinions about public policy issues. They do that all the time, routinely spending millions to fund ads, research, policy papers, and lobbying activities. Today corporations are claiming that their “rights” to speak clash with longstanding forms of regulation of business activity. Whenever they are required to disclose information to consumers, regulators, the public, or enforcement officials, they argue, their First Amendment rights are implicated. Whenever they seek or transmit information, they say, they are “speaking,” and the First Amendment gives them the right to do that without fear of consequences.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">A growing number of constitutional challenges to reasonable regulations</font></div><div><font size="4" face="Times New Roman">In recent years, large corporations have been emboldened to argue that corporate speech rights entitle them to strike down state health care prescription information laws — those forbidding pharmaceutical companies from selling information about the prescribing patterns of individual doctors, for example. They have argued that speech rights forbid certain securities regulations — specifically, those requiring investigation and disclosure of whether a company sells “conflict minerals” from the Democratic Republic of Congo. They have said that the First Amendment gives them a right to decline to say on product labels that the meat they sell comes from foreign countries, or that food products contain genetically modified ingredients.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In a related egregious constitutional expansion, corporations have even attacked minimum wage laws as violating their rights under the 14th Amendment’s equal protection clause — when, as is typical, such laws treat firms differently based on size (or form of organization). The corporate misuse of the First Amendment and the Constitution more broadly, has gone viral. It now might be considered corporate legal malpractice not to take a swing at challenging, on constitutional grounds, any law that gets in the way of the largest corporate profits.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Investigations by public agents, including attorneys general, are a necessary component of law enforcement. Efforts by public agents to ascertain facts in such investigations should not create constitutional controversy, provided the agents respect due process and other constraints on how they perform these duties. If corporations can invoke “free speech” as a way to conceal relevant information about allegedly false statements — if they can effectively create immunity from investigation by playing a constitutional trump card — then we are on a slippery slope to the civic incapacity and relative weakness in both rule of law and economic growth that characterizes Russia and other regimes that collapse the distinction between economic and political power.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">That’s why Exxon’s attack on the state investigations says so much about the damage to our constitutional framework wrought by the Supreme Court’s invention of these new corporate rights. In our federal system, attorneys general are the highest law enforcement officers in the state, generally elected directly by people, and charged with protecting the public interest and checking the abuse of corporate power. Yet in the post–Citizens United world, Exxon — with a virtually unlimited budget — can summon any officials with the temerity to do their job into physically distant courts. Trumped-up “civil rights” litigation of this kind has self-evident potential for the harassment and intimidation of would-be investigators.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Even the majority of justices in Citizens United did not argue that corporate speech rights protected fraudulent statements. Yet unless the Court revisits its First Amendment doctrines, Exxon’s attack on efforts by the states to investigate its conduct shows that such nuances may not matter. Whether Exxon wins or loses its “free speech” claims, it has already delivered its real message: Those who stand up for the public interest will face a high cost.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Jeff Clements is the president of American Promise, a national nonpartisan group of American citizen leaders working for the 28th Amendment to secure government of the people, not money. He previously was a partner in a Boston law firm and served as chief of the Public Protection Bureau in the Massachusetts Attorney General’s Office.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">John Coates is the John F. Cogan Jr. professor of law and economics, as well as research director of the Center on the Legal Profession, at Harvard Law School. Before joining Harvard, he was a partner at Wachtell, Lipton, Rosen & Katz specializing in financial institutions and mergers and acquisitions.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">=</font></div><div><font size="4" face="Times New Roman">ref 1</font></div><div><font size="4" face="Times New Roman">Corporate Speech and the First Amendment: History, Data, and Implications</font></div><div><font size="4" face="Times New Roman">Constitutional Commentary, Forthcoming</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">41 Pages Posted: 9 Mar 2015 Last revised: 14 May 2015</font></div><div><font size="4" face="Times New Roman">John C. Coates, IV</font></div><div><font size="4" face="Times New Roman">Harvard Law School</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Date Written: February 27, 2015</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Abstract</font></div><div><font size="4" face="Times New Roman">This Article draws on empirical analysis, history, and economic theory to show that corporations have begun to displace individuals as direct beneficiaries of the First Amendment and to outline an argument that the shift reflects economically harmful rent seeking.&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The history of corporations, regulation of commercial speech, and First Amendment case law is retold, with an emphasis on the role of constitutional entrepreneur Justice Lewis Powell, who prompted the Supreme Court to invent corporate and commercial speech rights. The chronology shows that First Amendment doctrine long post-dated both pervasive regulation of commercial speech and the rise of the U.S. as the world’s leading economic power – a chronology with implications for originalists, and for policy. Supreme Court and Courts of Appeals decisions are analyzed to quantify the degree to which corporations have displaced individuals as direct beneficiaries of First Amendment rights, and to show that they have done so recently, but with growing speed since Virginia Pharmacy, Bellotti, and Central Hudson.&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Nearly half of First Amendment challenges now benefit business corporations and trade groups, rather than other kinds of organizations or individuals, and the trend-line is up. Such cases commonly constitute a form of corruption: the use of litigation by managers to entrench reregulation in their personal interests at the expense of shareholders, consumers, and employees. In aggregate, they degrade the rule of law, rendering it less predictable, general and clear. This corruption risks significant economic harms in addition to the loss of a republican form of government.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Keywords: First Amendment, corporations, Court of Appeals, Virginia Pharmacy, Bellotti, Central Hudson</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">JEL Classification: D72, K10, K22, K23, K42, L51</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Suggested Citation:</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Coates, IV, John C., Corporate Speech and the First Amendment: History, Data, and Implications (February 27, 2015). Constitutional Commentary, Forthcoming . Available at SSRN: https://ssrn.com/abstract=2566785 or http://dx.doi.org/10.2139/ssrn.2566785</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman"></font></div><div><font size="4" face="Times New Roman">Does Exxon Have a Constitutional Right to Deny Climate Change ...</font></div><div><font size="4" face="Times New Roman">www.motherjones.com/environment/2016/06/exxon-ken-paxton-first-amendment</font></div><div><font size="4" face="Times New Roman">Jun 30, 2016 - Does Exxon Mobil have a constitutional right to sow doubt about climate science? ...Exxon, he wrote, had a First Amendment right to withhold the ... when the government must act toprotect the integrity of the market, even if it ...</font></div><div><font size="4" face="Times New Roman">Corporations like Exxon are using spurious free speech claims to fend ...</font></div><div><font size="4" face="Times New Roman">www.vox.com/the.../exxon-first-amendment-free-speech-citizens-global-warming</font></div><div><font size="4" face="Times New Roman">3 days ago - ... of the First Amendment — and other constitutional rights — Exxon Mobil, ... of American history with virtually no First Amendment protections.</font></div><div><font size="4" face="Times New Roman">Exxon-Mobil is abusing the first amendment - The Washington Post</font></div><div><font size="4" face="Times New Roman">https://www.washingtonpost.com/.../exxonmobils.../2df8b29c-38c4-11e6-9ccd-d6005be...</font></div><div><font size="4" face="Times New Roman">Jun 24, 2016 - The oil giant is brazenly invoking the First Amendment to block a subpoena by state attorneys ... If ExxonMobil has committed fraud, its speech would not merit First Amendment protection. ... Lando unequivocally held that the Constitution does not preclude ordinary discovery of .... Play right from this page ...</font></div><div><font size="4" face="Times New Roman">Exxon Mimics Big Tobacco's First Amendment Plea</font></div><div><font size="4" face="Times New Roman">www.climateinvestigations.org/exxon_mimics_big_tobacco_s_first_amendment_plea</font></div><div><font size="4" face="Times New Roman">Apr 19, 2016 - ExxonMobil raised the First Amendment defense when it sued in Tarrant ... as a violation of ExxonMobil's constitutional right to participate "in ongoing public ... It held that no First Amendment protection applies to Nike's false ...</font></div><div><font size="4" face="Times New Roman">Exxon Fights Subpoena in Widening Climate Probe, Citing Violation of ...</font></div><div><font size="4" face="Times New Roman">https://insideclimatenews.org/.../exxon-virgin-islands-subpoena-climate-change-invest...</font></div><div><font size="4" face="Times New Roman">Apr 14, 2016 - ExxonMobil Corp. sued to block a subpoena issued last month by the ... and that it violates the company's constitutional rights and "constitutes an abuse of ... strikes at protected speech at the core of the First Amendment.".</font></div><div><font size="4" face="Times New Roman">Exxon and Its Allies Invoke First Amendment to Fight Climate Fraud ...</font></div><div><font size="4" face="Times New Roman">https://insideclimatenews.org/.../exxon-competitive-enterprise-institute-cei-climate-cha...</font></div><div><font size="4" face="Times New Roman">Apr 22, 2016 - Exxon and Its Allies Invoke First Amendment to Fight Climate Fraud Probes ... the FirstAmendment rights of those who question climate science. ... at protected speech at the core of the FirstAmendment." .... Exxon Fights Subpoena in Widening Climate Probe, Citing Violation of ItsConstitutional Rights.</font></div><div><font size="4" face="Times New Roman">3 Reasons We Oppose a Congressional Move to Protect Exxon ...</font></div><div><font size="4" face="Times New Roman">www.ecowatch.com/we-oppose-a-congressional-move-to-protect-exxon-1946424984...</font></div><div><font size="4" face="Times New Roman">Jul 27, 2016 - Constitutional Rights Violations ... colleagues bombastically claim that their crusade is toprotect ExxonMobil's First Amendment rights, as well ...</font></div><div><font size="4" face="Times New Roman">Exxon Corporation v. Eagerton | Oyez</font></div><div><font size="4" face="Times New Roman">https://www.oyez.org/cases/1982/81-1020</font></div><div><font size="4" face="Times New Roman">Feb 22, 1983 - Exxon Corporation (Exxon), along with other gas and oil producers in Alabama, ... EqualProtection Clause of the 14th amendment and the Contract Clause. ... rights under the Equal ProtectionClause of the U.S. Constitution?</font></div><div><font size="4" face="Times New Roman">Exxon Tries To Bury Climate Documents By Claiming First ...</font></div><div><font size="4" face="Times New Roman">www.huffingtonpost.com/.../exxon-first-amendment_us_571662c6e4b0060ccda46d6...</font></div><div><font size="4" face="Times New Roman">Apr 19, 2016 - Exxon's invocation of the First Amendment is fairly unusual for a ... But others have tried to defend the oil company's free speech rights on this ...</font></div><div><font size="4" face="Times New Roman">First Amendment Freedoms Must Be Protected | The Daily Caller</font></div><div><font size="4" face="Times New Roman">dailycaller.com/.../texas-is-fighting-back-against-the-activist-ags-dangerous-climate-su...</font></div><div><font size="4" face="Times New Roman">Jun 2, 2016 - A view of the Exxon Mobil refinery in Baytown, Texas, in this ... Texas AG's Decision To Fight In Favor Of ExxonMobile's Constitutional Rights?</font></div><div><font size="4" face="Times New Roman">=</font></div><div><font size="4" face="Times New Roman">=</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">gore&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">dapl 1st amend protectors</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">http://www.ecowatch.com/al-gore-dakota-access-pipeline-2064996220.html</font></div><div><font size="4" face="Times New Roman">
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</font></div><div><font size="4" face="Times New Roman">dapl</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">http://www.ecowatch.com/dakota-access-pipeline-amy-goodman-deia-schlosberg-2050793154.html</font></div><div><font size="4" face="Times New Roman">
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</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">see also J&J:</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Drug Corporation’s Free Speech “Rights” Trump FDA’s Approval Process</font></div><div><font size="4" face="Times New Roman">https://movetoamend.org/corporate-rule-examples-3</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In early August 2015 a U.S. District Court judge in New York City held that the First Amendment protects a drug corporation’s right to market drugs to doctors for purposes not approved by the Food and Drug Administration (Amarin Pharma, Inc vs. U.S. FDA).</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“This is huge,” said Jacob Sherkow, an associate professor at New York Law School.&nbsp; “… This is the first time that any federal court has held in such a clear, full-throated way that off-label marketing is protected by the First Amendment."1</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The decision technically applies only to the district in which it was made and will likely be appealed by the agency.&nbsp; The FDA has limited pharmaceutical corporations’ claims about its products to only the approved “intended use.”&nbsp; Any additional uses for the drug, known as “off label” uses, must undergo clinical trials before approval.2</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Amarin Pharma Inc. won this ruling in regard to its drug Vascepa used to treat high fat levels in the blood.&nbsp; Doctors are being advised by the company to prescribe it to patients with lower blood fat levels.&nbsp; The drug was neither tested nor approved for such use.&nbsp; The court said the “off label” promotion must rely on “truthful” information, a condition that critics believe is open to interpretation.&nbsp; Companies could cherry-pick the studies to put their product in a favorable light.3</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Harvard Medical School professor, Jerry Avron found the decision very troubling. “It’s a big push onto… a very steep, slippery slope toward removing government’s authority to limit the claims that drug companies can make about the effectiveness of their products.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">First Amendment Rights for Corporations?</font></div><div><font size="4" face="Times New Roman">This ruling by a federal court is another example of corporations claiming their rights of legal “personhood”-- in this case, the right of protected speech, and commercial speech at that.&nbsp; It reminds us again how important it is for us natural persons to understand the consequences of our corporate creations, mere legal fictions, having been granted such powers.&nbsp;&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">How can we protect ourselves from risk-laden drug marketing schemes when we have no authority to prevent such corporate assaults at the doctor’s office or behind the prescription counter?&nbsp; The regulatory agency at issue is, once again, behind events not in charge of them.&nbsp;&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">What is the purpose of the First Amendment and to whom or what institutions does it apply?&nbsp; Is it meant for political speech? Should it reach to commercial speech?&nbsp;&nbsp;</font></div><div><font size="4" face="Times New Roman">Alexander Meiklejohn, a scholar of the First Amendment, wrote that freedom of speech “does not intend to guarantee men freedom to say what some private interest pays them to say for its own advantage.&nbsp; It intends only to make men free to say what, as citizens, they think, what they believe, about the general welfare.”4</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Clearly these are matters that call for people’s attention and engagement.&nbsp; In our commercial culture driven by corporate profit, an increasing number of people are contesting the growing power of private interests over public interests.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Move to Amend invites us to act against such private, corporate takings of people’s rightful authority and to join its work toward democratic possibility.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">To learn more:</font></div><div><font size="4" face="Times New Roman">1. National Constitution Center - http://blog.constitutioncenter.org/2015/08/constitution-check-is-the-first-amendment-a-threat-to-the-safety-of-medicines/</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">2. The New York Times - http://www.nytimes.com/2015/08/11/business/dealbook/fdas-off-label-drug-policy-leads-to-free-speech-fight.html?r=0</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">3. The New York Times - http://www.nytimes.com/2015/08/08/business/court-forbids-fda-from-blocking-truthful-promotion-of-drug.html?r=0</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">4. Alexander Meiklejohn, Political Freedom: the Constitutional Powers of the People, New York: Harper and Brothers, 1960.&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">5. Exploring Constitutional conflicts -http://law2.umkc.edu/faculty/projects/ftrials/conlaw/commercial.htm</font></div><div><font size="4" face="Times New Roman">
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</font></div><div><font size="4" face="Times New Roman">2x?</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">James H. Davidson believes in the First Amendment. The former college newspaper editor turned lawyer turned Senate aide is now one of the most powerful lobbyists in Washington.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">For two decades, Davidson has been the point man for the advertising industry in free speech issues. More recently his clients have also included food and beverage companies in alliance with advertisers. They have joined forces to lead the fight against the proposed government guidelines on sugar, salt and fat in food marketed to 2- to 17-year-olds.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Davidson also says there is no proof that food marketing causes obesity, and without it, there is no legal basis for restricting the ads.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"The First Amendment protects this type of speech," he said.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Other lobbyists pointed to the role of potentially unlimited political donations in explaining how industry has been able to so thoroughly defeat the proposed salt, sugar and fat guidelines.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In 2009, Congress passed a measure proposed by Harkin and Senator Sam Brownback (R-Kansas) to ask the FTC and three other agencies -- the CDC, the Department of Agriculture and the Food and Drug Administration -- to draft voluntary nutrition standards for children's food marketing. The two senators were motivated by studies showing that children develop lifelong preferences from watching ads that target them with saltier, sweeter foods than adults.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">=</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">http://www.dailykos.com/story/2016/05/20/1528932/-Republicans-write-sad-letters-saying-investigations-into-Exxon-are-First-Amendment-rights-violations</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">House Republicans on the House Science Committee sent a series of letters to 17 state attorneys general and eight climate change organizations, from Greenpeace to theRockefeller Family Fund, that accuses them of a:</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">[...] coordinated attempt to deprive companies, nonprofit organizations, and scientists of their First Amendment rights and ability to fund and conduct scientific research free from intimidation and threats of prosecution.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">This is in response to the 17 attorneys general who announced that they will be going after ExxonMobil and others for perpetuating a fraud on every single person on the planet.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"The First Amendment, ladies and gentlemen, does not give you the right to commit fraud," said Schneiderman, who in November issued a subpoena to ExxonMobil under the state's far-reaching securities and consumer protection statutes.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"Every attorney general does work on fraud cases, and we are pursuing this as we would any other fraud matter. You have to tell the truth, you can't make misrepresentations of the kinds we've seen here," he said on Tuesday. "The scope of the problem we are facing, the size of the corporate entities and their alliances, the trade associations and other groups, is massive and it requires a multistate effort."</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Schneiderman had this to say about the do-nothing Congress:</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"It is remarkable that a do-nothing Congress that has refused to take any action on climate change is now attempting to disrupt this important investigation into potential corporate malfeasance," New York Attorney General Eric Schneiderman's spokesman Eric Soufer said in a statement.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"The irony of this letter is breathtaking, as its signatories appear to be part of a multi-pronged media campaign funded by the fossil fuel industry aimed at suppressing the free exchange of ideas among scientists, academics, and responsible law enforcement. New York will continue to work with and collaborate with its colleagues across the country, and those with expertise in this area, to protect its citizens from fraud," said Soufer.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Pathetic. The globe is burning and there is clear evidence that companies like ExxonMobil were well aware of the dangers companies like themselves posed to the climate, and not only did they hide that information for decades, they actively worked to cast doubt on the very facts they themselves suspected.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">You can go here to find the letters and the idiots writing them.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman"></font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman"></font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">exxon knew:</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“The chilling effect of this inquiry, which discriminates based on viewpoint to target one side of an ongoing policy debate, strikes at protected speech at the core of the First Amendment,” wrote Wells and the Exxon legal team.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The Virgin Islands rebutted Wells and Exxon in an April 25 response.&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“Your argument that this investigation targets protected speech mirrors arguments that were decisively rejected in the United States’s case against tobacco, which held tobacco companies financially responsible for and imposed sweeping injunctive relief to address a decades-long scheme by those defendants to misrepresent the scientific facts regarding smoking,” reads the letter signed by Virgin Islands Attorney General Claude Earl Walker. “If ExxonMobil knowingly deceived consumers and investors about climate change, it, too, is not above the law.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Numerous conservative groups — some with ties to the climate change denial echo chamber such as Koch-funded groups like Competitive Enterprise Institute, Pacific Legal Foundation, and Heritage Foundation — have also called the Virgin Islands subpoena a First Amendment attack.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">So too did the editorial boards of the Wall Street Journal and the National Review Magazine. The Free Speech in Science Project, a group whose funding stream has yet to be revealed, has also pushed a First Amendment argument.</font></div><div><font size="4" face="Times New Roman"></font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">SODA sugar</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">FIRST AMENDMENT PROTECTION</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">James H. Davidson believes in the First Amendment. The former college newspaper editor turned lawyer turned Senate aide is now one of the most powerful lobbyists in Washington.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">For two decades, Davidson has been the point man for the advertising industry in free speech issues. More recently his clients have also included food and beverage companies in alliance with advertisers. They have joined forces to lead the fight against the proposed government guidelines on sugar, salt and fat in food marketed to 2- to 17-year-olds.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Davidson also says there is no proof that food marketing causes obesity, and without it, there is no legal basis for restricting the ads.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"The First Amendment protects this type of speech," he said.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Other lobbyists pointed to the role of potentially unlimited political donations in explaining how industry has been able to so thoroughly defeat the proposed salt, sugar and fat guidelines.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In 2009, Congress passed a measure proposed by Harkin and Senator Sam Brownback (R-Kansas) to ask the FTC and three other agencies -- the CDC, the Department of Agriculture and the Food and Drug Administration -- to draft voluntary nutrition standards for children's food marketing. The two senators were motivated by studies showing that children develop lifelong preferences from watching ads that target them with saltier, sweeter foods than adults.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman"></font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">The First Amendment right to free speech has been broadened by the courts to allow corporations to give campaign contributions, lobby legislators, run advertisements that support their interests, exercise the right not to speak, and paint their activities as "green."</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">When President George W. Bush ran for governor of Texas, he received more than $4 million in campaign donations from companies that have benefited greatly from the Texas Environmental, Health, and Safety Audit Privilege Act, which he signed soon after taking office.2 This law says that companies need not report their violations of environmental regulations to law enforcement officials or to the public. Nor can they be penalized for self-reported violations. Some 25 other states have passed similar audit privilege laws in the past decade.3</font></div><div><font size="4" face="Times New Roman"></font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Barrett Brown is a US journalist whose work has appeared in the Guardian, Vanity Fair, Huffington Post, Businessweek, True/Slant, Skeptical Inquirer and many other outlets.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">He was originally charged with forwarding a link to the information exposed about Stratfor that also included information about Stratfor employees, including their credit card details. But this formed only a tiny part of the vast amount of data. Nor, it should be added, did Brown use this datafor financial gain. In the end the US government agreed to drop the more serious charges after lawyers filed a legal memorandum: they correctly argued these charges were effectively a violation of the First Amendment, pointing out that “publishing a hyperlink does not itself move, convey, select, place or otherwise transfer, a file or document from one location to another”. Ahmed Ghappour (who directs the Liberty, Security and Technology Clinic, at the University of CaliforniaHastings College of Law) stated: “Looking at that [the sharing of an online link] as criminal conduct would probably bring an end to all digital journalism, period. There would be no reporting on leaks.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The remaining charges included transmitting a threat in interstate commerce, being an accessory after the fact to an unauthorized access to a protected computer (i.e. the exposure by Hammond of the Stratfor data) and obstructing the execution of a search warrant (by allegedly hiding his laptops). These laptops contained journalistic sources and work product, including a book-in-progress.The First Amendment protects reporters from revealing confidential information or sources. The New York Court of Appeals recently held that “There is no principle more fundamental or well-established than the right of a reporter to refuse to divulge a confidential source.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">With Brown (and Hammond – see below) the fundamentals of a reporter’s rights were completely ignored. The intention of the US Government here was simple: to imprison and silence those intent on using the advances of the information age to expose unpalatable truths, including the extensive connections between private security companies to government, the military, the defense world and think-tanks.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">=</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">jones day (lettow jr?)</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">08-24-2012 | 05:19 PMAuthor: Michael Lefkowitz</font></div><div><font size="4" face="Times New Roman">Graphic Warnings Violate Tobacco Companies’ Rights, Federal Appeals Court Rules</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">WASHINGTON, D.C. - (Mealey's) Graphic cigarette pack warnings proposed by the U.S. Food and Drug Administration violate tobacco companies' First Amendment right against compelled speech, a federal appeals court ruled Aug. 24, setting up a split between circuits on the issue (R.J. Reynolds Tobacco Company, et al. v. United States Food and Drug Administration, et al., No. 11-5332, D.C. Cir.) [enhanced version available to lexis.com subscribers].</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">(Opinion available.&nbsp; Document #04-120919-006Z.)</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"The First Amendment requires the government not only to state a substantial interest justifying a regulation on commercial speech, but also to show that its regulation directly advances that goal," the panel of the District of Columbia Circuit U.S. Court of Appeals said, citing Central Hudson Gas & Elec. Corp., v. Pub. Serv. Comm'n (447 U.S. 557, 566 [1980]).&nbsp; "FDA has not provided a shred of evidence-much less the 'substantial evidence' required by the APA [Administrative Procedure Act]-showing that the graphic warnings will 'directly advance' its interest in reducing the number of Americans who smoke."</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Unlike in Warner-Lambert Co. v. FTC, 562 F.2d 749 (D.C. Cir. 1977), the panel said, the FDA has not shown that the graphic warnings were designed to correct past false or misleading claims or that, absent disclosure, consumers would likely be deceived by the packaging in the future.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">General Disclosures</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"Rather, FDA framed the warnings as general disclosures about the negative health effects of smoking," the panel said.&nbsp; "The warnings thus represent an ongoing effort to discourage consumers from buying the Companies' products, rather than, as in Warner-Lambert, a measure designed to combat specific deceptive claims."&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"In fact, many of the images do not convey any warning information at all, much less make an 'accurate statement' about cigarettes," the panel said.&nbsp; "For example, the images of a woman crying, a small child, and the man wearing a T-shirt emblazoned with the words 'I QUIT' do not offer any information about the health effects of smoking."</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The opinion is by Circuit Judge Janice Rogers Brown, with Senior Circuit Judge A. Raymond Randolph concurring.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Circuit Judge Judith W. Rogers dissented, saying that in light of decades of tobacco industry deception about the risks of smoking, the court should have applied the less-stringent, rational-basis review of Zauderer v. Office of Disciplinary Council of the Supreme Court of Ohio (471 U.S. 626, 650-51 [1985]), not the intermediate scrutiny of Central Hudson.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"Because the warning labels present factually accurate information and address misleading commercial speech, as defined in Supreme Court precedent, Zauderer scrutiny applies, and the government need show only that the warning label requirement is reasonably related to its stated and substantial interest in effectively conveying this information to consumers," Judge Rogers said.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Appeal</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The case is on appeal from the U.S. District Court for the District of Columbia, where Judge Richard J. Leon on March 1 ruled against the government (R.J. Reynolds Tobacco Company, et al. v. United States Food and Drug Administration, et al., No. 1:11-1482, D. D.C.; 2012 U.S. Dist. LEXIS 26257).&nbsp; A similar case in the Sixth Circuit U.S. Court of Appeals went in the government's favor, albeit with a dissent (Discount Tobacco City & Lottery Inc., et al. v. United States of America, et al., No. 10-5234 and 10-5235, 6th Cir.; 2012 U.S. App. LEXIS 5614).</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">R.J. Reynolds Tobacco Co. and Santa Fe Natural Tobacco Co. are represented by Geoffrey K. Beach of Womble, Carlyle, Sandridge & Rice in Winston-Salem, N.C., and Noel J. Francisco and Warren Postman of Jones Day in Washington.&nbsp; Lorillard Inc. is represented by Floyd Abrams, Joel L. Kurtzberg and Kayvan Sadeghi of Cahill, Gordon & Reindel in New York and Scott D. Danzis of Covington & Burling in Washington.&nbsp; Commonwealth Brands Inc. is represented by Philip J. Perry of Latham & Watkins in Washington.&nbsp; Liggett Vector Brands LLC is represented by Jonathan D. Hacker of O'Melveny & Myers in Washington.&nbsp; The government is represented by Drake S. Cutini and Daniel K. Crane-Hirsch of the U.S. Justice Department in Washington.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">[Editor's Note:&nbsp; Lexis subscribers may download the document using the link above. The document(s) are also available at http://www.mealeysonline.com/ or by calling the Customer Support Department at 1-800-833-9844.]</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">=</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">cigarette label mixed ruling?</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">http://blogs.findlaw.com/sixth_circuit/2012/03/showdown-sixth-circuit-oks-new-cigarette-warning.html</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Showdown? Sixth Circuit OKs New Cigarette Warning Label</font></div><div><font size="4" face="Times New Roman">By Robyn Hagan Cain on March 19, 2012 3:03 PM</font></div><div><font size="4" face="Times New Roman">The Sixth Circuit Court of Appeals ruled today that the new, graphic cigarette warning labels do not violate tobacco companies’ free speech rights, reports Politico.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In a lengthy opinion, the court affirmed the Family Smoking Prevention and Tobacco Control Act’s restrictions on the marketing of modified-risk tobacco products and bans on event sponsorship, branding non-tobacco merchandise, and free sampling, as well as the requirement that tobacco manufacturers reserve significant packaging space for textual health warnings.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The court also agreed with the district court that the new color graphic and non-graphic warning label requirement is constitutional.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">But it wasn't all good news for the government: the court appellate court rejected black-and-white, text-only advertising restrictions imposed on tobacco companies.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Discount Tobacco City & Lottery, Inc., a coalition of manufacturers and sellers, challenged the advertising restrictions under the Act approximately two months after President Obama signed it into law. The group sued the U.S. government, claiming that the Act violates their free speech rights under the First Amendment, constitutes an unlawful taking under the Fifth Amendment, and infringes on their Fifth Amendment due process rights.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The Sixth Circuit Court of Appeals largely disagreed. Writing for the majority, Judge Eric Clay concluded, "The warning labels required by the Act do not impose any restriction on Plaintiffs' dissemination of speech, nor do they touch upon Plaintiffs' core speech. Instead, the labels serve as disclaimers to the public regarding the incontestable health consequences of using tobacco."</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">That's a far cry from last month's D.C. district court decision, finding that the new cigarette warning requirement violated the tobacco industry's free speech rightswithout a compelling government interest. While the D.C. decision may still be appealed to the D.C. Circuit Court of Appeals, the split could lead to a Supreme Court showdown between tobacco companies and the government.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Related Resources:</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Discount Tobacco City & Lottery v. USA (Sixth Circuit Court of Appeals)</font></div><div><font size="4" face="Times New Roman">Cigarette Warnings Violate 1st Amendment, Federal Judge Rules (FindLaw's Decided)</font></div><div><font size="4" face="Times New Roman">Contribution Prohibition is Lawful Limit on Free Speech Rights (FindLaw's Fourth Circuit Blog)</font></div><div><font size="4" face="Times New Roman">=</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman"></font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">http://www.southernstudies.org/2015/04/color-coded-cancer-sticks.html</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">By Phil Mattera, Dirt Diggers Digest</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">At the headquarters of Reynolds American (parent of R.J. Reynolds Tobacco) in North Carolina and the Virginia headquarters of Altria (parent of Philip Morris USA) time is apparently running backwards. The two companies just filed a lawsuit in DC federal court that reads like it was written in 1995, not 2015.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The target of the suit (15-CV-00544) is the U.S. Food and Drug Administration, which the companies apparently have forgotten was given authority by Congress in 2009 to regulate tobacco marketing, including the introduction of new products. That law came after years of vociferous opposition by Big Tobacco.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">What has the companies up in arms is an FDA guidance document issued in March concerning review requirements for packaging changes. The agency takes the position that certain modifications in background color, logo and descriptors can be significant enough to trigger the stricter rules regarding new products.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Presenting themselves as victims of government overreach, the companies argue that their First Amendment rights are being violated: "FDA's unlawful actions already have harmed Plaintiffs and threaten greater harms in the future by restricting Plaintiffs' ability to modify their product labels without FDA preauthorization and by chilling and restricting protected speech."</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Although the case does not involve the federal warning labels that have been required for decades, it makes the puzzling argument that the FDA guidelines also violate the industry's Fifth Amendment rights against self-incrimination.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">While it is not unusual for big business to assert free speech rights to oppose regulations, this position is particularly galling when it comes from the tobacco industry. These are the companies, after all, that for decades concealed and denied the hazards of smoking, asserting it was their right to "believe" their products were non-addictive and did not cause cancer despite the mountain of evidence to the contrary. Their dishonest claims were made all the more fraudulent when documents came to light indicating that firms such as Brown & Williamson (now part of Reynolds American) knew about the dangers at least as far back as the early 1960s.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The issue of control over tobacco packaging was already fought, and the industry lost. In 2006 a federal court, finding that the industry had caused "an immeasurable amount of suffering,"ordered it stop labeling cigarettes with designations such as low tar, light and natural that gave the misleading impression that they were safe.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Tobacco companies began using techniques such as package coloring to get around the restriction. In 2010 a New York Times article on the practice quoted Prof. Gregory Connolly of the Harvard School of Public Health as saying the industry was "circumventing the law." He added: "They're using color coding to perpetuate one of the biggest public health myths into the next century."</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">At the heart of the new case is the tension between public policies designed to discourage tobacco use and the continued existence of an industry which has to attract customers to survive. The industry's lawsuit, with its assertion of free speech rights, proceeds from the assumption that producing and selling tobacco products is a legitimate activity. A more appropriate premise might be that tobacco is a public health menace that should be controlled as tightly as possible until the last smoker has kicked the habit and the companies can shut down.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Big Tobacco would do well to stop wrapping itself in the Bill of Rights and acknowledge that it is lucky it is still allowed to sell its deadly products at all.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">(Note: This piece draws from my new Corporate Rap Sheets on Reynolds American and Altria.)</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">=</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">FEIN&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">take back st louis http://freespeechforpeople.org/print/834</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">https://tui.1ittlecup.com/ronfein</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;John C. Coates @jciv (Cambridge, MA)</font></div><div><font size="4" face="Times New Roman">Professor of Law and Economics, Harvard Law School</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;recent study claims that "corporations have begun to displace individuals as direct beneficiaries of the First Amendment." Its author joins HuffPost Live to discuss his findings and explain what they mean for free speech</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">http://live.huffingtonpost.com/r/segment/first-amendment-corporations-problems/5510363002a760ec7b000620</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">altlantic corp 1st amed grab https://tui.1ittlecup.com/ronfein/status/583373794959589376?p=v</font></div><div><font size="4" face="Times New Roman"></font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">A recent study claims that "corporations have begun to displace individuals as direct beneficiaries of the First Amendment." Its author joins HuffPost Live to discuss his findings and explain what they mean for free speech.&nbsp; John C. Coates @jciv (Cambridge, MA)</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Professor of Law and Economics, Harvard Law School</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman"></font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">http://www.nytimes.com/2015/03/24/us/first-amendment-patron-saint-of-protesters-is-embraced-by-corporations.html?r=0</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Liberals used to love the First Amendment. But that was in an era when courts used it mostly to protect powerless people like civil rights activists and war protesters.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">These days, a provocative new study says, there has been a “corporate takeover of the First Amendment.” The assertion is backed by data, and it comes from an unlikely source: John C. Coates IV, who teaches business law at Harvard and used to be a partner at Wachtell, Lipton, Rosen & Katz, the prominent corporate law firm.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“Corporations have begun to displace individuals as the direct beneficiaries of the First Amendment,” Professor Coates wrote. The trend, he added, is “recent but accelerating.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Professor Coates’s study was only partly concerned with the Supreme Court’s recent decisions amplifying the role of money in politics.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“It’s not just Citizens United,” he said in an interview, referring to the 2010 decision that allowed unlimited independent spending by corporations in elections. His study, he said, analyzed First Amendment challenges from businesses to an array of economic regulation.&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Tim Wu, a law professor at Columbia,described the shift in First Amendment doctrine in 2013 in The New Republic.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“Once the patron saint of protesters and the disenfranchised, the First Amendment has become the darling of economic libertarians and corporate lawyers who have recognized its power to immunize private enterprise from legal restraint,” Professor Wu wrote.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“Madison’s Music,” a new book by Burt Neuborne, a law professor at New York University, gives a detailed history of the transformation of First Amendment law. In his account, “the American right discovered the First Amendment” in the early 1970s.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“An expansive conception of free speech became attractive to Republican justices,” he wrote, “both because robust free-speech protection fit neatly into the right’s skeptical, deregulatory approach to government generally, and because it encouraged vigorous transmission by powerful speakers of the right’s newly energized collection of ideas.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">Those conservative justices, Professor Neuborne wrote, found willing allies in liberal justices long committed to free speech.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">In the next two decades, the Supreme Court continued to protect dissent, twice voting to strike down laws banning flag burning. But now, Professor Neuborne wrote, broad coalitions of justices also voted to protect the powerful.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">In 1976 alone, he wrote, the court shielded both unrestricted election spending by rich people, “giving the 1 percent a tangible reason to celebrate a muscular First Amendment,” and commercial advertising, “giving corporate management a strong stake in the First Amendment.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">By the time the left woke up and realized it had made “a Faustian bargain,” Professor Neuborne wrote, “the bipartisan coalition had generated an enormously powerful body of precedent establishing an imperial free speech clause.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">The case on commercial speech, Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, was a turning point, Professor Coates found in his study. After that ruling, the average number of First Amendment cases in the Supreme Court involving businesses started to rise to 2.2 a year from 1.5, and the number involving individuals started to fall, to 3.6 from 4.3.</font></div><div><font size="4" face="Times New Roman">
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</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">Continue reading the main storyContinue reading the main storyContinue reading the main story</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">More striking, the success rates for both groups increased, but far more for businesses. Individuals won 55 percent of the time, up from 41 percent. Businesses also won 55 percent of the time, up from 20 percent.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">Before 1976, First Amendment challenges from corporations generally involved companies in the business of free expression, like newspapers, book publishers and film producers. More recently, companies have filed free-speech challenges to laws regulating how ordinary products may be marketed or advertised.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">Professor Coates also analyzed data from federal appeals courts, finding that “businesses are growing steadily more aggressive in their use of the First Amendment.” Court dockets these days are full of free-speech challenges from pharmaceutical firms, tobacco companies, miners, meat producers and airlines.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">Such lawsuits, he wrote, have pernicious consequences for both free enterprise and the rule of law. Corporations are diverting resources from research and innovation to litigation, he wrote.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">“Concentrated, moneyed interests, represented by those in control of the country’s largest business corporations,” he wrote, “are increasingly able to turn law into a lottery, reducing law’s predictability, impairing property rights, and increasing the share of the economy devoted to rent-seeking rather than productive activity.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">The court led by Chief Justice John G. Roberts Jr. has been receptive to arguments based on corporations’ free-speech rights.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">In a recent essay, Laurence H. Tribe, a law professor at Harvard, offered a cautious partial defense of the Citizens United decision. But he said it was an instance of a larger phenomenon.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“It is part of a trend in First Amendment law that is transforming that body of doctrine into a charter of largely untrammeled libertarianism,” he wrote, “in which the regulation of virtually all forms of speech and all kinds of speakers is treated with the same heavy dose of judicial skepticism, with exceptions perversely calculated to expose particularly vulnerable and valuable sorts of expression to unconvincingly justified suppression.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">Professor Tribe gave examples of the sorts of people whose First Amendment arguments have not fared well in the Roberts court: students, prisoners, pacifists and whistle-blowers.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Floyd Abrams, a leading First Amendment lawyer who has defended The New York Times and was on the winning side in Citizens United, reflected on the trend toward protecting the powerful in a speech last week at Temple University.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“There is truth in the proposition that a number of recent First Amendment victories in recent years have been on behalf of the ‘haves’ — some of them corporations, some individuals,” he said. “But that is no basis for concluding that the decisions were wrongly analyzed or wrongly decided.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman"></font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">in&nbsp; several states, Republican lawmakers are sponsoring bills that would allow employers to use “religious liberty” as an excuse to do whatever they want – including discriminate against customers or employees on the basis of religion.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Georgia's version of this religious liberty bill has already passed the state senate, but is running into trouble in the house, where even the speaker, a Republican, has expressed skepticism about the legislation.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Progressive activists in the state are leaving nothing to chance, realizing that if the bill passes, the state could see a new wave of discrimination similar to Jim Crow-style restrictions on African Americans. Some women's organizations are particularly concerned that right-wing employers could, for example, fire women who've had abortions.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">On Monday, four women – Megan Harrison, Lorraine Fontana, Emma Stitt, and Jessica Reznicek – sought an audience with the bill's chief Senate sponsor, Republican Josh McKoon. Not only were the four women denied a meeting with McKoon, they were arrested.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The American Friends Service Committee shared a few photos of the arrest</font></div><div><font size="4" face="Times New Roman">http://www.alternet.org/gender/georgia-women-arrested-protesting-bill-would-let-employers-fire-women-whove-had-abortion</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">=</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Another significant shift in the law since Powell’s memo was circulated has been the gradual expansion of corporate constitutional rights (referred to by some business groups as “business civil liberties”), especially in the realms of commercial and political speech. The most infamous example is the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission. In the commercial sphere, companies have similarly used corporate speech doctrines to challenge various restrictions on corporate advertising (e.g. direct-to-consumer advertising of prescription drugs for off-label uses), limits on media ownership, and product safety labeling requirements (e.g. cigarettes and genetically modified foods).</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Corporate constitutional rights are regularly claimed (with the implicit threat of litigation) in opposition to new or proposed regulations. One recent example came during recent attacks on regulations created by the Dodd-Frank financial reform package, which contained a provision requiring that companies report their use of tin, gold and other minerals that can be traced back to the conflict-ridden Democratic Republic of the Congo. In its comments to the SEC, Tiffany & Co. claimed the SEC rules would “compel speech in a manner that violates the First Amendment.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman"></font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">New York Town Repeals Fracking Gag Order After Free Speech Lawsuit</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">NEW YORK (April 17, 2013) – The Town Board of Sanford, NY, has repealed the gag order it passed last summer on discussing fracking at their meetings, following a First Amendment lawsuit filed in February by the Natural Resources Defense Council and Catskill Citizens for Safe Energy. As a result, the groups are dropping their Freedom of Speech lawsuit today.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Statements follow from NRDC and CCSE:</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“The people of Sanford will no longer be silenced. With this action, the Town Board has rightly recognized the validity of residents’ concerns about this controversial heavy industrial activity moving into their backyards, and the need for their local representatives to hear them. This is especially important in light of the board’s history of support for fracking. This is a vindication of the right to free speech. And it sends a message to communities everywhere. As Americans, we have the right to speak up when we feel threatened. And it is our government’s responsibility to listen.” –Kate Sinding, Director of the Community Fracking Defense Project at NRDC.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“We are gratified that Sanford dropped its unconstitutional ban on free speech. It's unfortunate that it required litigation to re-establish this fundamental right for the citizens of Sanford, but by rescinding the ban now, the Town Board at least spared the taxpayers the expense of a protracted and costly lawsuit.” –Tom Wilinsky of Catskill Citizens for Safe Energy.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Background on the lawsuit here: http://www.nrdc.org/media/2013/130212.asp.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman"></font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;yay</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">And yesterday, these 10 were found “not guilty” by New York City Criminal Court Judge Robert Mandelbaum. According to Flood Wall Street, Judge Mandelbaum ruled that the New York Police Department’s (NYPD) order to disperse violated the First Amendment. In his ruling, the judge also found “that by ordering protesters to leave the entire Wall Street area, police violated protesters’ First Amendment right to carry their message directly to its intended recipients: the Wall Street bankers who bankroll climate change.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Defense Attorney Jonathan Wallace successfully argued that the Constitution protects Americans’ rights to “express political speech within proximity to the target of the protest. In this case, the NYPD first prevented protesters from entering Wall Street before later orderingthem to leave the area altogether.” This method of policing proved to be unlawful.&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">That is a victory in and of itself for the 10 individuals, as well as, the general American public and its right to protest. But the judge went even further “by taking judicial notice that climate change is happening, is a serious problem, requires immediate action and is caused by human activity,” said Flood Wall Street.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“The importance of judicial notice is that the judge accepted climate change and the need to do something about it as a fact without the necessity of any evidentiary support or proof at trial,” said Defense Attorney Martin Stolar. “To the best of my knowledge, this is unprecedented and has significance for future litigation involving climate change.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The ruling sets an important legal precedent in recognizing the constitutional legitimacy of mass civil disobedience actions protesting climate change, according to Flood Wall Street. The 10 defendants gave passionate testimony to the court, “affirming that their actions were justified.”...</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">http://ecowatch.com/2015/03/06/found-not-guilty-flood-wall-street</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">=</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">...</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">So the law had already been stacked on behalf of corporations when attorney Lewis Powell penned his memorandum to the Chamber of Commerce in 1971 and when former Treasury Secretary William Simon started soliciting corporate millions. Justice For Sale describes what is only the latest in a long history of corporate efforts to use judges and the law to shape legal doctrines governing investment, production, natural resources, the rights of workers, the rights of stockholders, the liabilities of corporations and their executives. Simon's initiative is but another corporate campaign to limit citizens' constitutional rights, to close off the courts as a means of redress against concentrations of capital.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">By virtue of their claimed right to influence the electoral process (upheld by the courts under the doctrine of "commercial free speech"), corporations have been major opponents of citizen referenda and initiatives to stop corporate harms, and major proponents of referenda and initiatives to shape government intervention in the economy. Via contributions to House and Senate candidates, they have bought the best Congress money can buy. Via campaign contributions to state legislators and with help from the American Bar Association and state bar associations, they have been rewriting corporation, tort, contract, property and liability laws. Never known for thinking small, they are today unabashedly writing such laws for former Soviet Union and Eastern European countries -- places where these same corporations are seeking natural resources, cheap labor and vast markets....</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">=</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">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.[1]</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">http://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The First Amendment (Amendment I) to the United States Constitution prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering with the right to peaceably assemble or prohibiting the petitioning for a governmental redress of grievances. It was adopted on December 15, 1791, as one of the ten amendments that constitute the Bill of Rights.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The Bill of Rights was originally proposed as a measure to assuage Anti-Federalist opposition to Constitutional ratification. Initially, the First Amendment applied only to laws enacted by the Congress, and many of its provisions were interpreted more narrowly than they are today. Beginning with Gitlow v. New York (1925), the Supreme Court applied the First Amendment to states—a process known as incorporation—through the Due Process Clause of the Fourteenth Amendment.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In Everson v. Board of Education (1947), the Court drew on Founding Father Thomas Jefferson's correspondence to call for "a wall of separation between church and State", though the precise boundary of this separation remains in dispute. Speech rights were expanded significantly in a series of 20th and 21st-century court decisions which protected various forms of political speech, anonymous speech, campaign financing, pornography, and school speech; these rulings also defined a series of exceptions to First Amendment protections. The Supreme Court overturned English common law precedent to increase the burden of proof for defamation and libel suits, most notably in New York Times Co. v. Sullivan (1964). Commercial speech, however, is less protected by the First Amendment than political speech, and is therefore subject to greater regulation.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The Free Press Clause protects publication of information and opinions, and applies to a wide variety of media. In Near v. Minnesota (1931) and New York Times v. United States(1971), the Supreme Court ruled that the First Amendment protected against prior restraint—pre-publication censorship—in almost all cases. The Petition Clause protects the right to petition all branches and agencies of government for action. In addition to the right of assembly guaranteed by this clause, the Court has also ruled that the amendment implicitly protects freedom of association.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Contents&nbsp; &nbsp;[hide]&nbsp;</font></div><div><font size="4" face="Times New Roman">1 Text</font></div><div><font size="4" face="Times New Roman">2 Background</font></div><div><font size="4" face="Times New Roman">3 Establishment of religion</font></div><div><font size="4" face="Times New Roman">3.1 Separationists</font></div><div><font size="4" face="Times New Roman">3.2 Accommodationists</font></div><div><font size="4" face="Times New Roman">4 Free exercise of religion</font></div><div><font size="4" face="Times New Roman">5 Freedom of speech</font></div><div><font size="4" face="Times New Roman">5.1 Speech critical of the government</font></div><div><font size="4" face="Times New Roman">5.1.1 World War I</font></div><div><font size="4" face="Times New Roman">5.1.2 Extending protections</font></div><div><font size="4" face="Times New Roman">5.2 Political speech</font></div><div><font size="4" face="Times New Roman">5.2.1 Anonymous speech</font></div><div><font size="4" face="Times New Roman">5.2.2 Campaign finance</font></div><div><font size="4" face="Times New Roman">5.2.3 Flag desecration</font></div><div><font size="4" face="Times New Roman">5.2.4 Falsifying military awards</font></div><div><font size="4" face="Times New Roman">5.3 Commercial speech</font></div><div><font size="4" face="Times New Roman">5.4 School speech</font></div><div><font size="4" face="Times New Roman">5.5 Obscenity</font></div><div><font size="4" face="Times New Roman">5.6 Memoirs of convicted criminals</font></div><div><font size="4" face="Times New Roman">5.7 Defamation</font></div><div><font size="4" face="Times New Roman">5.8 Private action</font></div><div><font size="4" face="Times New Roman">6 Freedom of the press</font></div><div><font size="4" face="Times New Roman">7 Petition and assembly</font></div><div><font size="4" face="Times New Roman">8 Freedom of association</font></div><div><font size="4" face="Times New Roman">9 See also</font></div><div><font size="4" face="Times New Roman">10 References</font></div><div><font size="4" face="Times New Roman">11 Further reading</font></div><div><font size="4" face="Times New Roman">12 External links</font></div><div><font size="4" face="Times New Roman"></font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Lorillard Tobacco Co. v. Reilly, Attorney General of Mass, 533 U.S. 525 (2001)</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In Lorillard, the U. S. Supreme Court held that the Massachusetts regulations prohibiting</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">smokeless tobacco or cigar advertising within 1,000 feet of a school or playground violated the</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">tobacco corporation's First Amendment free speech (commercial speech) rights.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Issue: Does the Massachusetts' cigarette advertising and sales practices regulation for tobacco</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">products (cigarette, smokeless tobacco, and cigar) violate the First Amendment?</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">Rule: Massachusetts' outdoor and point-of-sale (indoor) advertising relating to smokeless</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">tobacco and cigars is a form of expression protected by the First Amendment free speech</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">clause.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">Application: Massachusetts created comprehensive regulations governing the advertising and</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">sale of cigarettes, smokeless tobacco, and cigars. The outdoor advertising regulation prohibited</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">advertising within 1,000 feet of a school or playground. The indoor, point-of-sale, advertising</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">regulation prohibited advertisements lower than 5 feet from the floor of a retail establishment</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">located within 1,000 feet of a school or playground.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">For commercial speech to come within protection of the First Amendment, the Supreme Court</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">applied the four part test from Central Hudson Gas & Elec. Corp. v. Public Serv. Commission of</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">N. Y., 447 U. S. 557, at 566: 1) the expression must at least concern lawful activity and not be</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">misleading, 2) the asserted governmental interest must be substantial, 3) the regulation must</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">directly advance the governmental interest asserted, 4) the expression must not be more</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">extensive than is necessary to serve that interest.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">The Attorney General of Massachusetts presented studies, one from the FDA, which cited the</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Surgeon General's report as well as the Institute of Medicine's report. These two reports found</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">that "there is sufficient evidence to conclude that advertising and labeling play a significant and</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">important contributory role in a young person's decision to use cigarettes or smokeless tobacco</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">products."</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">However, the Supreme Court ruled that the outdoor advertising regulations are invalid under</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">the fourth step of the Central Hudson analysis. The Supreme Court also ruled that the indoor</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">advertising regulation on the height of indoor advertising is invalid under Central Hudson's</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">third and fourth prongs. The Supreme Court concluded that the sales practices regulations</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">withstood First Amendment scrutiny and were valid.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">Transformation: Corporations can spend massive amounts of money to advertise products,</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">including dangerous products such as cigarettes and other tobacco products, even to children.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">Effect: Massachusetts state law regulating cigarette advertising was invalidated, which gives</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">corporations the right to target advertising tobacco products to children. The effect is that the</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">tobacco industry can advertise in such as way as to target children in order to create more</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">tobacco consumers.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">loss of:</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">By Matthew Rothschild on October 16, 2004</font></div><div><font size="4" face="Times New Roman">Three Teachers Evicted from Bush Event for Wearing "Protect Our Civil Liberties" T-Shirts</font></div><div><font size="4" face="Times New Roman">About 20 years ago, the former editor of The Progressive magazine, Erwin Knoll, wanted to make a point about the lack of free speech in shopping malls. So he and a few colleagues and friends distributed copies of the Bill of Rights in a mall in Madison, Wisconsin. They were arrested for doing so.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Three Teachers Evicted from Bush Event for Wearing "Protect Our Civil Liberties" T-Shirts</font></div><div><font size="4" face="Times New Roman">Matthew Rothschild</font></div><div><font size="4" face="Times New Roman">October 16, 2004</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">About 20 years ago, the former editor of The Progressive magazine, Erwin Knoll, wanted to make a point about the lack of free speech in shopping malls. So he and a few colleagues and friends distributed copies of the Bill of Rights in a mall in Madison, Wisconsin. They were arrested for doing so.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">A recent action by three teachers in Oregon reminded me of that perfect snapshot of lost freedom.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">On October 14, they decided to attend a Bush rally at the Jackson County Fairgrounds near Medford, where they teach. They wanted to see their President, and they also wanted to stand up for First Amendment rights, since they had heard on NPR that the Bush campaign was curtailing such rights all along the trail.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">So they came up with an ingenious idea. They obtained tickets for the event, and they made and wore T-shirts that said, "Protect Our Civil Liberties." Alas, they were not allowed to hear the President. In fact, they were threatened with arrest.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">I talked with two of the three teachers, Tania Tong and her sister, Candice Julian, both of whom teach special education to elementary school children in Medford. The third is a student teacher named Janet Voorhies, who works with Tong.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"We didn't want to come up with anything that was offensive or antagonistic," says Julian, who says it was her idea to have the shirts say, "Protect Our Civil Liberties."</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"We were concerned about stories we had heard about people trying to go to participate in rallies and being denied access because they had paraphernalia that said something about Kerry," Tong explains. "We wanted to voice our opinion in a way that wasn't degrading to anybody. The shirt was really kind of benign."</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">They picked up their tickets the day before the event, but even there they had a hard time. The woman handing tickets out raised a question about Julian being from Ashland, a liberal town. "She asked me if I was going to protest or whether I was going to vote for Bush," says Julian. "And she said, 'I'll give you the ticket if you don't protest.' "</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Julian agreed that she would not disrupt the event.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">On October 14, they proceeded to the fairgrounds. They showed their driver's licenses and tickets at the first checkpoint. Campaign officials "were scrutinizing our T-shirts," Julian says, but they let the three in.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">At the second checkpoint, which consisted of a metal detector staffed by the Secret Service, more questions arose.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"People came up and said, 'Do you know this is a Bush rally? We're concerned about your T-shirts,' " recalls Tong.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"We asked them why.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"They said, 'We don't want anything that's going to cause a disruption.'</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"Then they asked, 'Are you going to vote for Bush?'</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"And I said that I was undecided and my sister Candice said she was choosing not to answer because it's a personal decision."</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The campaign officials said they could go in if they could guarantee they would not make a scene, Tong says. "We assured them that we did not come with any intention of being disorderly, so they said fine and said they respected our differing opinions," she recalls.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">At that point, the three teachers assumed they were in, and that they could take their seats and listen to the President.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">No such luck.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"As we were walking over to sit down, a woman grabbed me by the arm from the back and grabbed my shirt," Tong says. "She said she would have to look under my shirt for offensive language. I told her she wouldn't find any there. She still looked. Then we walked about two more steps and a man came up and asked to see our IDs again and then made a comment abut my sister living in Ashland. But he gave us our IDs back, and we proceeded to sit down."</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Campaign officials did not leave the three alone, however. They followed them to their seats, and when Janet Voorhies got up to go to the bathroom, she was tailed, Tong and Julian say.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">When Voorhies did not return promptly, they became concerned and got up to see what was going on.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"A guy had Janet by the elbow and was leading her away," says Julian.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"And he said to us, 'Give us your tickets.' "</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"We said, 'Why?' And I put the ticket behind my back, and one of the guys who had been following us ripped it out of my hands."</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Seeing what happened to her sister's ticket, Tong put hers down her pants, she says.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Campaign officials then told all three women to leave.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"They said it was a private event, for invited guests," Tong recalls.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"We said we were invited because we were given tickets.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"One said, 'You don't have tickets anymore.'</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"We said, 'We did until you ripped them out of our hands.'</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"And we asked him, 'Are you offended by our shirts?'</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"He said our shirts were 'obscene.' "</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Tong and Julian say that about ten men, including Secret Service officers and sheriff's deputies, proceeded to surround them.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"They weren't letting us move anywhere," Tong says. Campaign officials told law enforcement, "These people need to leave," she recalls.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"We asked what would happen if we didn't, and the police said we'd be arrested for disorderly conduct," Tong says.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">So the three teachers headed away.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"They walked us out past the parking lot and said if you come back, we're going to arrest you," Julian says. She told one of the men, "I just wanted to see my President." And he said, "You're just going to have to watch him on TV,"</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"The more and more I think about it the more and more I'm really ticked off," Julian says. "I should have the right to exercise my First Amendment rights. We were of no risk. The Secret Service had already screened us, and they had let us through. It had nothing to do with security. It had everything to do with us having differing views."</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Tong is equally angry. "I'm just shocked that the statement on our shirts is even controversial," she says. "I thought that was one of our founding principles and that we have certain rights and freedoms that should be protected."</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The Bush campaign and the Oregon Republican Party did not return calls and e-mails for comment.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Deputy Michael Hermant of the Jackson County Sheriff's Department says he doesn't know who was involved in this incident. "There were so many agencies there you couldn't believe it," he says. "Agencies from out of state, out of county, every available agency within the county, plus Secret Service. I have no way of knowing" who escorted the women out of the event or why.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"I can't imagine why the campaign would have asked them to leave," says Dave Fidanque, executive director of the Oregon ACLU, who stresses that the event was on public property at the county fairgrounds. "For a Presidential campaign to eject people who are not being disruptive seems out of character with the America I know."</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">- See more at: http://www.progressive.org/node/2362#sthash.BCvVd6mi.dpuf</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">---</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">IRATE:</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Powell Era Supreme Court</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Corporation's First Amendment Free Speech Rights (Political & Commercial Speech)</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Political Speech:</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Democracy of the People, by the People, and for the People</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Buckley v. Valeo, 424 U.S. 1 (1976)</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978)</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Citizens United v. Federal Election Commission, 558 U.S. 50 (2010)</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">American Tradition Partnership, Inc. v. Steve Bullock, Attorney General of</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Montana, 567 U.S. (2012)</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">Commercial Speech:</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Whose speech is heard, the corporation's or the people's?</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Central Hudson Gas & Elec. Corp. v. Public Utilities Comm'n, 447 U.S. 557</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">(1980)</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Pacific Gas & Elec. Co. v. Public Utilities Comm'n, 475 U.S. 1, reh. den., 475 U.S.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">1133 (1986)&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">Safe Community / Health, Safety and Well-being of the People:</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">International Dairy Foods Assoc'n v. Amestoy, No.876, Docket 95-7819 (2nd Cir</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">1996). rGBH proto GMO?</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">Safe Community & Right to Protect the Children in our</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">http://scc-mta.org/sites/default/files/MTA_IRATE_Doc_Version_02_04_13.pdf</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">=</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">IRATE:</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Pacific Gas and Electric v. Public Utilities Comm'n, 475 U.S. 1 (1986)</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In PG&E, the U.S. Supreme Court held that a corporation has the right not to be associated with</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">the speech of others. In this case, PG&E was not required to include a message from Toward</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Utility Rate Normalization (TURN) with PG&E's bill to customers.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Issue: Does compelling a private corporation to provide a forum for views other than its own</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">infringe on the corporation's freedom of speech?</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Rule: The First Amendment states “Congress shall make no law . . . abridging the freedom of</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">speech . . .”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Application: An independent consumer group, TURN, urged the Public Utilities Commission</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">(PUC) to require that PG&E include a pamphlet from TURN four times per year, in the PG&E</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">billing envelope, provided that the pamphlet use space not used for the billing and required</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">notices. TURN proposed to use their space to provide alternative information about PG&E</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">issues to the PG&E customers. [Cit U decision argued more info is good?)</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The PUC's order required PG&E to associate with speech with which PG&E may disagree. For</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">corporations as for individuals, the choice to speak includes within it the choice of what not to</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">say.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The Supreme Court concluded that the envelope, bill, and postage were paid for by the</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">corporation and therefore were property of PG&E, not the customer. Thus, the Court decided</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">that the PUC's order for PG&E to disseminate TURN's speech with potentially hostile views in</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">envelopes that PG&E owns risks forcing PG&E to speak where it would prefer not to speak.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Burdens on free speech can be valid, if they are a narrowly tailored means of serving a</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">compelling state interest. The Court concluded that the PUC's order did not meet this</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">requirement.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Transformation: This decision gives a corporation negative speech rights under the First</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Amendment, which protects it against state regulatory action. Any person or group that wishes</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">to speak out against a particular corporate policy or activity must do so through independent</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">news media or independent mailings. Reaching the particular customers affected by the</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">corporation is now extraordinarily expensive, therefore usually beyond the means of any</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">citizens group.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Effect: The First Amendment has been extended to protect a corporation from being required</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">to transfer information other than what the corporation itself has deemed appropriate to its</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">customers. No PUC or other regulatory body may impinge on that negative free speech.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">Fictional Representational Story: I own a small, four-generation farm in West Virginia,</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">where we raise and support the family with vegetables and fruits and the sale of hogs, chickens,</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">and eggs. The farm is near a coal mine operated by a major corporation, the Freedom Mining</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Company. Weekly, I and many of my farming neighbors receive a multi-color brochure from</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Freedom outlining all the "benefits" of selling our farms to them so they can rip up the soil in a</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">big strip-mining operation. The brochures are filled with statements from various politicians</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">and "scientists", explaining the need for “energy independence” for America, and questioning</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">why so many Americans are opposed to their efforts. I want to tell my own story, but I know</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">there is no way that Freedom would print my story alongside theirs. Our newspapers, mostly</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">owned by big corporations, all seem to tell the Freedom story: the few opposing views that get</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">printed appear as letters to the editor. To make it worse, most of my neighbors are inclined to</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">sell out, leaving me and a few others to fight off this wealthy corporation on our own.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Written by: W. A. Barrett Disclaimer: For educational purpose only.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman"></font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">http://www.alternet.org/obamas-first-amendment-defense-political-liars</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">apr 2014</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">resident Obama, through his U.S. Solicitor General, arguing before the U.S. Supreme Court, has now stated that lying in political campaigns isn't merely protected by the First Amendment's guarantee of free speech, but that it is an especially protected form of speech, which must not be hindered by any state government, such as by the state of Ohio. Ohio has outlawed such intentional deception of voters, and has established heavy criminal penalties against it, when it can be proven. The idea behind this law is that any democracy in which lying in political campaigns isn't penalized by severe penalties, won't remain a democracy much longer, but will instead descend into a kleptocracy: theft of elections themselves (via lies), so that they become just nominal "elections," which are controlled by whatever aristocrats can put up the most money, to lie the most effectively, to the biggest number of voters: lying-contests.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">It's an important Supreme Court case. As Constitutional lawyer Lyle Denniston has noted, in his "Argument preview: Attack ads and the First Amendment": "In all of the history of the First Amendment, the Court has never ruled that false statements are totally without protection under the Constitution." However, this Supreme Court will have an opportunity to do that here, in the case SBA List v. Dreihaus; or else, to do the exact opposite -- to open wide (even wider than they now are) the floodgates to political lies.&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Public opinion (e.g., this), and the President of the United States (via his Solicitor General, to be discussed here below), seem to favor opening the floodgates. If that were to happen, then the recently unleashed outpouring of sheer corporate and billionaire cash (via the Citizens United decision, and the more recent McCutcheon decision) into political contests, will become even more unrestrained by (and disconnected from) any consideration of the truthfulness (or not) of this "free speech," so that the U.S. public will naturally be inundated by torrents, not only of aristocratic money pouring over public opinions, but of outright and provable lies financed by the richest aristocrats, polluting and poisoning those torrents, which will drench voters' minds, and will thus poison political outcomes (which is why that money is spent -- to do precisely this)....</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman"></font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Notable opinions http://en.wikipedia.org/wiki/Priscilla_Owen</font></div><div><font size="4" face="Times New Roman">In 2010, Judge Owen joined Emilio M. Garza and Edith Brown Clement in affirming the dismissal of the complaint in Doe v. Silsbee Independent School District.[8] The plaintiff ("H.S.") was a cheerleader who was ordered by her high school to cheer for her alleged rapist, a basketball player named Rakheem Bolton.[9] H.S. refused and was kicked off the team. She sued, claiming aviolation of her First Amendment right to free speech. The Eastern District of Texas, Judge Thad Heartfield, granted the school district's motion to dismiss,[10] and Judges Clement, Garza, andOwen affirmed.[8] H.S. was ordered to pay the school $45,000 in legal fees for filing a "frivolous" lawsuit.[9]</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman"></font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Here’s what passes for good news when it comes to a free press these days: two weeks ago, the Supreme Court refused without comment to hear a case involving New York Times reporter James Risen.&nbsp; It concerned his unwillingness to testify before a grand jury under subpoena and reveal a confidential source of information in his book State of War on the secret U.S. campaign against the Iranian nuclear program.&nbsp; The case will now go back to the United States Court of Appeals for the Fourth Circuit, which has already ordered him to testify.&nbsp; He says he will instead go to jail, if necessary.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">That’s the bad news, right?&nbsp; Really bad news!&nbsp; The Supremes, the highest court in the land, refused to protect a reporter protecting a source at a moment when the Obama administration is in the midst of a wide-ranging crackdown on leakers and whistleblowers of all sorts (and those in the media considered to be aiding and abetting them).&nbsp; Actually, in a world in which Congress has not yet managed to pass a federal shield law that would protect reporters, it turns out that that’s actually the good news -- or so at least various media commentators say.&nbsp; Follow the logic here (and it is logic of a sort).&nbsp; Right now the Richmond, Virginia-based Appeals court decision applies only to courts in states under its jurisdiction.&nbsp; Had the Supremes agreed to take on the case, given their conservative and generally government-friendly bent on matters of executive power and what passes for national security, they would likely have ruled against Risen and that ruling would have applied nationally.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">So, phew!&nbsp; Their rejection was a “blessing” (in disguise).&nbsp; The only harm they did, after all, was to confirm the atmospherics of a moment in which the Obama administration has been eager to shut down the leaking of unauthorized government information in a big way -- oh yes, and drive another modest nail into the coffin of a free-to-report-what-our-government-actually-does media.&nbsp; That’s the minimal, not the maximal damage claim; so say various relieved commentators.&nbsp; As for Risen, he now has to depend on the kindness of strangers, of in fact Attorney General Eric Holder, who may briefly declare a truce in the administration’s “war on the press” and not jail him.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Best news we’ve had in a while!&nbsp; And should Congress pass that shield law (even if it leaves national security out), uncork the champagne!&nbsp; And we’ll all toast the Supreme Court and the attorney general and the president and his top officials for their grace under pressure.&nbsp; Or rather, hold on just a sec there.&nbsp; Maybe that isn’t quite the classic American way of preserving our freedoms -- i.e, allowing our government free rein to preserve them for us, if its officials happen to be in the mood.&nbsp; In fact, as State Department whistleblower and TomDispatch regular Peter Van Buren suggests, we may be entering a grim new era when it comes to our Constitution and the Bill of Rights. Tom</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">What We've Lost Since 9/11&nbsp;</font></div><div><font size="4" face="Times New Roman">Taking Down the First Amendment in Post-Constitutional America&nbsp;</font></div><div><font size="4" face="Times New Roman">By Peter Van Buren</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">America has entered its third great era: the post-constitutional one. In the first, in the colonial years, a unitary executive, the King of England, ruled without checks and balances, allowing no freedom of speech, due process, or privacy when it came to protecting his power.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In the second, the principles of the Enlightenment and an armed rebellion were used to push back the king’s abuses. The result was a new country and a new constitution with a Bill of Rights expressly meant to check the government's power. Now, we are wading into the shallow waters of a third era, a time when that government is abandoning the basic ideas that saw our nation through centuries of challenges far more daunting than terrorism. Those ideas -- enshrined in the Bill of Rights -- are disarmingly concise. Think of them as the haiku of a genuine people's government.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Deeper, darker waters lie ahead and we seem drawn down into them. For here there be monsters.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The Powers of a Police State Denied</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">America in its pre-constitutional days may seem eerily familiar even to casual readers of current events. We lived then under the control of a king. (Think now: the imperial presidency.) That king was a powerful, unitary executive who ruled at a distance. His goal was simple: to use his power over “his” American colonies to draw the maximum financial gain while suppressing any dissent that might endanger his control.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In those years, protest was dangerous. Speech could indeed make you the enemy of the government. Journalism could be a crime if you didn’t write in support of those in power. A citizen needed to watch what he said, for there were spies everywhere, including fellow colonists hoping for a few crumbs from the king's table. Laws could be brutal and punishments swift as well as extra-judicial. In extreme cases, troops shot down those simply assembling to speak out.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Among the many offenses against liberty in pre-constitutional America, one pivotal event, the Stamp Act of 1765, stands out. To enforce the taxes imposed by the Act, the king's men used "writs of assistance" that allowed them to burst into any home or business, with or without suspicion of wrongdoing. American privacy was violated and property ransacked, often simply as a warning of the king’s power. Some colonist was then undoubtedly the first American to mutter, “But if I have nothing to hide, why should I be afraid?” He soon learned that when a population is categorically treated as a potential enemy, everyone has something to hide if the government claims they do.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The Stamp Act and the flood of kingly offenses that followed created in those who founded the United States a profound suspicion of what an unchecked government could do, and a sense that power and freedom are not likely to coexist comfortably in a democracy. A balancing mechanism was required. In addition to the body of the Constitution outlining what the new nation's government could do, needed was an accounting of what it could not do. The answer was the Bill of Rights.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The Bill's preamble explained the matter this way: “...in order to prevent misconstruction or abuse of [the government's] powers, that further declaratory and restrictive clauses should be added.” Thomas Jefferson commented&nbsp; separately, "[A] bill of rights is what the people are entitled to against every government on earth."</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In other words, the Bill of Rights was written to make sure that the new government would not replicate the abuses of power of the old one. Each amendment spoke directly to a specific offense committed by the king. Their purpose collectively was to lay out what the government could never take away. Knowing first-hand the dangers of a police state and unchecked power, those who wrote the Constitution wanted to be clear: never again.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">It needs to be said that those imperfect men were very much of their era. They were right about much, but desperately wrong about other things. They addressed “humanity,” but ignored the rights of women and Native Americans. Above all, they did not abolish the institution of slavery, our nation’s Original Sin. It would take many years, and much blood, to begin to rectify those mistakes.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Still, for more than two centuries, the meaning of the Bill of Rights was generally expanded, though -- especially in wartime -- it sometimes temporarily contracted. Yet the basic principles that guided America were sustained despite civil war, world wars, depressions, and endless challenges. Then, one September morning, our Post-Constitutional era began amid falling towers and empty skies. What have we lost since? More than we imagine. A look at the Bill of Rights, amendment by amendment, tells the tale.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The First Amendment</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"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."</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The First Amendment was meant to make one thing indisputably clear: free speech was the basis for a government of the people. Without a free press, as well as the ability to openly gather, debate, protest, and criticize, how would the people be able to judge their government's adherence to the other rights? How could people vote knowledgeably if they didn’t know what was being done in their name by their government? An informed citizenry, Thomas Jefferson stated, was "a vital requisite for our survival as a free people."</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">That was how it was seen long ago. In Post-Constitutional America, however, the government strives to "control the message," to actively thwart efforts to maintain a citizenry informed about what’s done in its name, a concept that these days seems as quaint as Jefferson's powdered wig. There are far too many examples of the post-9/11 erosion of the First Amendment to list here. Let's just look at a few important ones that tell the tale of what we have lost since 9/11.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">(Lack of) Freedom of Information&nbsp;</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In 1966, an idea for keeping Americans better informed on the workings of their government was hatched: the Freedom of Information Act (FOIA). Strengthened in 1974, it began with the premise that, except for some obvious categories (like serious national security matters and personal information), the position of the government should be: everything it does is available to the public. Like the Bill of Rights, which made specific the limits of government, FOIA began with a presumption that it was the government’s duty to make information available -- and quickly -- to the people, unless a convincing case could be made otherwise. The default position of the FOIA switch was set to ON.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Three decades later, the FOIA system works far differently. Agencies are generally loath to release documents of any sort and instead put their efforts into creating roadblocks to legitimate requests. Some still require signatures on paper. (The State Department notes, “Requests for personal information cannot be submitted electronically and should be submitted by mail.”) Others demand hyper-detailed information like the precise dates and titles of documents whose dates and titles may be classified and unavailable. The NSA simply denies almost all FOIA requests out of hand, absent a court order.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Most federal agencies now regard the deadlinemandated for a response as the time period to send out a “request received” note. They tend to assign only a few staff members to processing requests, leading to near-endless delays. At the State Department, most FOIA work is done on a part-time basis by retirees. The CIA won’t directly release electronic versions of documents. Even when a request is fulfilled, “free” copying is often denied and reproduction costs exaggerated.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In some cases, the requested records have a way of disappearing or are simply removed. The ACLU’s experience when it filed an FOIA-style request with the Sarasota police department on its use of the cell phone surveillance tool Stingraycould be considered typical. The morning the ACLU was to review the files, Federal Marshals arrived and physically took possession of them, claiming they had deputized the local cops and made the files federal property. An ACLU spokesperson noted that, in other cases, federal authorities have invoked the Homeland Security Act to prevent the release of records.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">John Young, who runs the web site Cryptome and is a steadfast FOIA requester,stated, “Stonewalling, delay, brush-off, lying are normal. It is a delusion for ordinary requesters and a bitch of a challenge for professionals. Churning has become a way of life for FOIA, costly as hell for little results.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Sealed Lips and the Whistleblower</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">All government agencies have regulations requiring employees to obtain permission before speaking to the representatives of the people -- that is, journalists. The U.S. Intelligence Community has among the most restrictive of these policies, banning employees and contractors completely from talking with the media without prior authorization. Even speaking about unclassified information is a no-no that may cost you your job. A government ever more in lockdown mode has created what one journalist calls a “culture where censorship is the norm.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">So who does speak to Americans about their government? Growing hordes of spokespeople, communications staff, trained PR crews, and those anonymous “senior officials” who pop up so regularly in news articles in major papers.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">With the government obsessively seeking to hide or spin what it does, in-the-sunlight contact barred, and those inside locked behind an iron curtain of secrecy, the whistleblower has become the paradigmatic figure of the era. Not surprisingly, anyone who blows a whistle has, in these years, come under fierce attack.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Pick a case: Tom Drake exposing early NSA efforts to turn its spy tools on Americans, Edward Snowden proving that the government has us under constant surveillance, Chelsea Manning documenting war crimes in Iraq and sleazy diplomacy everywhere, John Kiriakou acknowledging torture by his former employer the CIA, or Robert MacLean revealing Transportation Safety Administration malfeasance. In each instance, the threat of jail was quick to surface. The nuclear option against such truthtellers is the Espionage Act, a law thatoffended the Constitution when implemented in the midst of World War I. It has been resurrected by the Obama administration as a blunt “wartime” tool for silencing and punishing whistleblowers.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The Obama administration has already charged six people under that act for allegedly mishandling classified information. Even Richard Nixon only invoked it once, in a failed prosecution against Pentagon Papers whistleblower Daniel Ellsberg.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Indeed, the very word “espionage” couldn’t be stranger in the context of these cases. None of those charged spied. None sought to aid an enemy or make money selling secrets. No matter. In Post-Constitutional America, the powers-that-be stand ready to twist language in whatever Orwellian direction is necessary to bridge the gap between reality and the king's needs. In the Espionage Act case of State Department contractor Stephen Kim, a judge departed from previous precedent,ruling that the prosecution need not even show that the information leaked to a Fox news reporter from a CIA report on North Korea could damage U.S. national security or benefit a foreign power. It could still be a part of an “espionage” charge.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">A final question might be: How could a law designed almost 100 years ago to stop German spies in wartime have become a tool to silence the few Americans willing to risk everything to exercise their First Amendment rights? When did free speech become a crime?</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Self-Censorship and the Press</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Each person charged under the Espionage Act in these years was primarily a source for a journalist. The writers of the Bill of Rights chose to include the term “press” in the First Amendment, specifically carving out a special place for journalists in our democracy. The press was necessary to question government officials directly, comment on their actions, and inform the citizenry about what its government was doing. Sadly, as the Obama administration is moving ever more fiercely against those who might reveal its acts or documents, the bulk of the media have acquiesced. Glenn Greenwald said it plainly: too many journalists have gone into a self-censoring mode, practicing "obsequious journalism."</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">For example, a survey of reporters showed “the percentage of U.S. journalists endorsing the occasional use of ‘confidential business or government documents without authorization,’ dropped significantly from 81.8% in 1992 to 57.7% in 2013.” About 40% of American journalists would not have published documents like those Edward Snowden revealed.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">And the same has been true of the management of newspapers. In mid-2004, James Risen and Eric Lichtblau uncovered George W. Bush's illegal warrantless eavesdropping program, but the New York Times held the story for 15 months, until after Bush's reelection. Executives at the Times were told by administration officials that if they ran the story, they'd be helping terrorists. They accepted that. In 2006, the Los Angeles Times similarly gave in to the NSA and suppressed a story on government wiretaps of Americans.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Government Efforts to Stop Journalists</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Reporters need sources. Increasingly, the government is classifying just about any document it produces -- 92 million documents in 2011 alone. Its intelligence agencies have even classified reports about the over-classification of documents.&nbsp; As a result, journalistic sources are often pressed into discussing, at great personal risk, classified information. Forcing a reporter to reveal such sources discourages future whistleblowing.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In one of the first of a series of attempts to make journalists reveal their sources, former Fox News reporter Mike Levine stated that the Justice Department persuaded a federal grand jury to subpoena him in January 2011. The demand was that he reveal his sources for a 2009 story about Somali-Americans who were secretly indicted in Minneapolis for joining an al-Qaeda-linked group in Somalia. Levine fought the order and the Department of Justice finally dropped it without comment in April 2012. Call it a failed test case.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">According to Washington lawyer Abbe Lowell, who defended Stephen Kim, significant amounts of time have been spent by the Department of Justice in the search for a legal rationale for indicting journalists for their participation in exposing classified documents. A crucial test case is James Risen's 2006 book, State of War, which had an anonymously sourced chapter on a failed CIA operation to disrupt Iran’s nuclear program. When Risen, citing the First Amendment, refused to identify his source or testify in the trial of the former CIA officer accused of being that source, the government sought to imprison him. He responded that the “Obama administration... wants to use this case and others like it to intimidate reporters and whistleblowers. But I am appealing to the Supreme Court because it is too dangerous to allow the government to conduct national security policy completely in the dark.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In June 2014, the Supreme Court refused to take Risen's case on appeal, essentially ratifying a U.S. Court of Appeals decision that the First Amendment didn’t protect a reporter from being forced to testify about “criminal conduct that the reporter personally witnessed or participated in.” That decision makes clear that a reporter receiving classified information from a source is part of the crime of “leaking.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Risen has said he will go to prison rather than testify. It is possible that, having secured the precedent-setting right to send Risen to jail, the government will bring the suspected leaker to trial without calling on him. Attorney General Eric Holder recently hinted that his Justice Department might take that path -- a break for Risen himself, but not for reporters more generally who now know that they can be jailed for refusing to divulge a source without hope of recourse to the Supreme Court.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The Descent Into Post-Constitutionalism</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">As with the King of England once upon a time, many of the things the government now does have been approved in secret, sometimes in secret courts according to a secret body of law. Sometimes, they were even approved openly by Congress. In constitutional America, the actions of the executive and the laws passed by Congress were only legal when they did not conflict with the underlying constitutional principles of our democracy. Not any more. “Law” made in secret, including pretzeled legal interpretations by the Justice Department for the White House, opened the way, for instance, to the use of torture on prisoners and in the Obama years to the drone assassination of Americans. Because such “legalities” remain officially classified, they are, of course, doubly difficult to challenge.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">But can’t we count on the usual pendulum swings in American life to change this? There were indeed notable moments in American history when parts of the Constitution were put aside, but none are truly comparable to our current situation. The Civil War lasted five years, with Lincoln's suspension of habeas corpus limited in geography and robustly contested. The World War II Japanese internment camps closed after three years and the persecuted were a sub-set of Japanese-Americans from the West Coast. Senator McCarthy’s notorious career as a communist-hunter lasted four years and ended in shame.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Almost 13 years after the 9/11 attacks, it remains “wartime.” For the war on terror, the driver, excuse, and raison d'être for the tattering of the Bill of Rights, there is no end in sight. Recently retired NSA head Keith Alexander is typical of key figures in the national security state when he claims that despite, well, everything, the country is at greater risk today than ever before. These days, wartime is forever, which means that a government working ever more in secret has ever more latitude to decide which rights in which form applied in what manner are still inalienable.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The usual critical history of our descent into a post-constitutional state goes something like this: in the panic after the 9/11 attacks, under the leadership of Vice President Dick Cheney with the support of President George W. Bush, a cabal of top government officials pushed through legal-lite measures to (as they liked to say) “take the gloves off” and allow kidnapping, torture, illegal surveillance, and offshore imprisonment along with indefinite detention without charges or trial.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Barack Obama, elected on a series of (false) promises to roll back the worst of the Bush-era crimes, while rejecting torture and closing America’s overseas “black sites,” still pushed the process forward in his own way. He expanded executive power, emphasized drone assassinations (including against American citizens), gave amnesty to torturers, increased government secrecy, targeted whistleblowers, and heightened surveillance. In other words, two successive administrations lied, performed legal acrobatics, and bullied their way toward a kind of absolute power that hasn’t been seen since the days of King George. That's the common narrative and, while not wrong, it is incomplete.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Missing Are the People</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">One key factor remains missing in such a version of post-9/11 events in America: the people. Even today, 45% of Americans, when polled on the subject, agree that torture is “sometimes necessary and acceptable to gain information that may protect the public.” Americans as a group seem unsure about whether the NSA's global and domestic surveillance is justified, and many remain convinced that Edward Snowden and the journalists who published his material are criminals. The most common meme related to whistleblowers is still “patriot or traitor?” and toward the war on terror, “security or freedom?”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">It’s not that Americans are incorrect to be fearful and feel in need of protection. The main thing we need to protect ourselves against, however, is not the modest domestic threat from terrorists, but a new king, a unitary executive that has taken the law for its own, aided and abetted by the courts, supported by a powerful national security state, and unopposed by a riven and weakened Congress. Without a strong Bill of Rights to protect us -- indeed, secure us -- from the dangers of our own government, we will have gone full-circle to a Post-Constitutional America that shares much in common with the pre-constitutional British colonies.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Yet there is no widespread, mainstream movement of opposition to what the government has been doing. It seems, in fact, that many Americans are willing to accept, perhaps even welcome out of fear, the death of the Bill of Rights, one amendment at a time.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">We are the first to see, in however shadowy a form, the outlines of what a Post-Constitutional America might look like. We could be the last who might be able to stop it.&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Peter Van Buren blew the whistle on State Department waste and mismanagement during Iraqi reconstruction in his first book, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People. ATomDispatch regular, he writes about current events at his blog We Meant Well. His new book, Ghosts of Tom Joad: A Story of the #99Percent, is available now.&nbsp; In future pieces at TomDispatch he will consider other amendments being dismantled in the post-9/11 era.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Follow TomDispatch on Twitter and join us on Facebook and Tumblr. Check out the newest Dispatch Book, Rebecca Solnit's Men Explain Things to Me.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">=</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">us 1st to label tobacco</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">http://en.wikipedia.org/wiki/Tobacco_packaging_warning_messages#Cigarettes</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Caution: Cigarette Smoking May be Hazardous to Your Health (1966–1970)</font></div><div><font size="4" face="Times New Roman">Warning: The Surgeon General Has Determined that Cigarette Smoking is Dangerous to Your Health (1970–1985)</font></div><div><font size="4" face="Times New Roman">SURGEON GENERAL'S WARNING: Smoking Causes Lung Cancer, Heart Disease,Emphysema, And May Complicate Pregnancy. (1985–)</font></div><div><font size="4" face="Times New Roman">SURGEON GENERAL'S WARNING: Quitting Smoking Now Greatly Reduces Serious Risks to Your Health. (1985–)</font></div><div><font size="4" face="Times New Roman">SURGEON GENERAL'S WARNING: Smoking By Pregnant Women May Result in Fetal Injury, Premature Birth, And Low Birth Weight. (1985–)</font></div><div><font size="4" face="Times New Roman">SURGEON GENERAL'S WARNING: Cigarette Smoke Contains Carbon Monoxide. (1985–)</font></div><div><font size="4" face="Times New Roman">In 1973, the Assistant Director of Research at R.J. Reynolds Tobacco Company wrote an internal memorandum regarding new brands of cigarettes for the youth market. He observed that, "psychologically, at eighteen, one is immortal" and theorized that "the desire to be daring is part of the motivation to start smoking." He stated, "in this sense the warning label on the package may be a plus." [29]</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In 1999, Philip Morris U.S.A. purchased three brands of cigarettes from Liggett Group Inc. The brands were: Chesterfield, L&M, and Lark. [30] At the time Philip Morris purchased the brands from Liggett, the packaging for those cigarettes included the statement, "Smoking is Addictive." After Philip Morris acquired the three Liggett brands, it removed the statement "Smoking is Addictive" from the packages. [31]</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Though the United States started the trend of labeling cigarette packages with health warnings, today the country has one of the smallest, least prominent warnings placed on their packages.[32] Warnings are usually in small typeface placed along one of the sides of the cigarette packs with colors and fonts that closely resemble the rest of the package, so the warnings essentially are integrated and do not stand out with the rest of the cigarette package.[32]</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">However, this is subject to change as the Family Smoking Prevention and Tobacco Control Act of 2009 requires color graphics with supplemental text that depicts the negative consequences of smoking to cover 50 percent of the front and rear of each pack. The nine new graphic warning labels were announced by the FDA in June 2011 and were required to appear on packaging by September 2012, though this was delayed by legal challenges.[33]</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In August 2011, five tobacco companies filed a lawsuit against the FDA in an effort to reverse the new warning mandate. Tobacco companies claimed that being required to promote government anti-smoking campaigns by placing the new warnings on packaging violates the companies' free speech rights.[34] Additionally, R.J. Reynolds, Lorillard, Commonwealth Brands Inc., Liggett Group LLC and Santa Fe Natural Tobacco Company Inc. claimed that the graphic labels are an unconstitutional way of forcing tobacco companies to engage in anti-smoking advocacy on the government's behalf</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">.[35]</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;A First Amendment lawyer, Floyd Abrams, represented the tobacco companies in the case, contending that requiring graphic warning labels on a lawful product cannot withstand constitutional scrutiny.[36] The Association of National Advertisers and the American Advertising Federation also filed a brief in the suit, arguing that the labels infringe on commercial free speech and could lead to further government intrusion if left unchallenged.[37]</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">On 29 February 2012, U.S. District Judge Richard Leon ruled that the labels violate the right to free speech in the First Amendment.[38] However, the following month the U.S. Court of Appeals for the 6th Circuit upheld the majority of the Tobacco Control Act of 2009, including the part requiring graphic warning labels. In April 2013 the Supreme Court declined to hear the appeal to this ruling, allowing the new labels to stand. As the original ruling against the FDA images was not actually reversed, the FDA will again need to go through the process of developing the new warning labels, and the timetable and final product remain unknown.[39][40][41][42]</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">=</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">measure I-522 in Washington State</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Center for Food Safety [1] / By Michele Simon [2]</font></div><div><font size="4" face="Times New Roman">Junk Food Lobbyists Sued for Money Laundering in Washington State</font></div><div><font size="4" face="Times New Roman">October 16, 2013&nbsp; |&nbsp;&nbsp;</font></div><div><font size="4" face="Times New Roman">In the final weeks leading up to Election Day, the debate over measure I-522 in Washington State is getting even uglier. As I recently explained [3], the Grocery Manufacturer Association, the nation’s largest trade group for the processed food industry, has been flexing its muscle to oppose the labeling of genetically-engineered food, both at the federal and state levels. Now, a lawsuit [4] brought by a non-profit called “Moms for Labeling” alleges that GMA crossed the line by not properly disclosing who is behind the whopping $7 million-plus the trade group has donated [5] to the No on 522 campaign so far.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The main goal of a lobbying organization like GMA is to pool the massive resources of its members, which include heavy-hitters such as Coca-Cola, PepsiCo, and General Mills; each has a huge stake in this fight. While last year in California, these companies donated millions to stop Proposition 37, this year, the game plan has changed. GMA is now doing industry’s dirty work by donating on behalf of its members and possibly violating Washington State’s lobbying rules in the process. Here is how the Seattle Post-Intelligencerexplains [6] the case:</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Under Washington’s public disclosure law, any organization that “bundles” contributions must declare itself as a political action committee. Moms for Labeling is citing underground industry sources to support its claim that the Grocery Manufacturers Association is fronting for the companies that gave heavily in California last year.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">While Superior Court judge Chris Wickham recently dismissed [7] the lawsuit, the attorney for the No on 522 campaign may have overstated the decision when she called it a “complete victory [8].” The judge did not actually rule on the merits of the case, so the allegations that GMA is fighting with junk food companies’ money still stands. Instead, the judge said [7] that the timing of the case wasn’t right, “not that there isn’t merit in the underlying claim.” In other words, as the Post-Intelligencer put it [7]: “The basic issue of the suit — the public’s right to know where money spent in the I-522 campaign comes from — remains unresolved.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">While dismissing the lawsuit based on timing, Judge Wickam also hit the non-profit with a $10,000 sanction (plus defendant attorney’s fees) under a statute meant, ironically, to protect against frivolous lawsuits brought by large corporations to stop public interest groups from speaking out. Known as Strategic Lawsuits Against Public Participation, anti-SLAPP laws are designed to protect David from Goliath. But GMA turned the tables, accusing Moms for Labeling of making a “strategic attempt to suppress [its] political speech.” And the judge agreed.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Still, the attorney who filed the suit on behalf of Moms for Labeling, Knoll Lowney, says he’s not backing down. Last week, he filed&nbsp; [9]a legal notice to give the state attorney general’s office ten days to file its own case, after which Lowney says Moms for Labeling will have met the requirements to bring the lawsuit again themselves. According to the letter, newly released 2012 tax filings show that GMA received contributions from member companies that it funneled to the No on Prop 37 campaign in California last year. “The new evidence we delivered to the attorney general makes it even more clear that No on 522 is illegally concealing its donors,” says&nbsp; [9]Pam Johnson, co-chair of Moms for Labeling.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In addition, Lowney says sources within these companies told him the $7 million is the result of GMA’s soliciting “voluntary special assessments” (donations on top of usual dues) from its members. While his whistleblowers can’t say with certainty that the special assessments are for I-522, “everyone knows where the money is going.” That GMA has yet to issue a flat out denial is also suspect, Lowney says.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">It’s really not hard to figure out. Just take a look at the executives running the show at GMA. The Board of Directors is a veritable who’s who of Big Food. For starters, Ken Powell [10], Chairman and CEO of cereal giant General Mills is board chair. Other notable GMA board members include:</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">John Bryant [11], President and CEO of Kellogg</font></div><div><font size="4" face="Times New Roman">Brian C. Cornell [12], Chief Executive Officer, PepsiCo Americas Foods</font></div><div><font size="4" face="Times New Roman">W. Anthony Vernon [13], Chief Executive Officer, Kraft Foods</font></div><div><font size="4" face="Times New Roman">J. Alexander M. Douglas Jr. [14], Senior Vice President and Global Chief Customer Officer, Coca-Cola</font></div><div><font size="4" face="Times New Roman">Each of these companies relies heavily upon on genetically-engineered ingredients to make its products, so it’s really no mystery what’s going on. During the California fight, food companies suffered significant backlash for opposing Prop 37. No wonder these corporations want to let GMA be the public face of their opposition this time around. But doing so just may be a violation of law. The question is: will they get away with it?</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Meanwhile, overall the opposition has donated $17 million to keep Washington State consumers in the dark. You can help support the Yes on 522 campaign by donating here [15].</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">See more stories tagged with:</font></div><div><font size="4" face="Times New Roman">food [16],</font></div><div><font size="4" face="Times New Roman">labeling [17],</font></div><div><font size="4" face="Times New Roman">right to know [18],</font></div><div><font size="4" face="Times New Roman">gmo [19]</font></div><div><font size="4" face="Times New Roman">Source URL: http://www.alternet.org/food/junk-food-lobbyists-sued-money-laundering-washington-state</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Links:</font></div><div><font size="4" face="Times New Roman">[1] http://www.centerforfoodsafety.org/</font></div><div><font size="4" face="Times New Roman">[2] http://www.alternet.org/authors/michele-simon</font></div><div><font size="4" face="Times New Roman">[3] http://www.eatdrinkpolitics.com/2013/09/17/are-junk-food-corporations-hiding-behind-lobbyists-to-stop-ge-food-labeling-in-washington-state/</font></div><div><font size="4" face="Times New Roman">[4] http://www.thestranger.com/images/blogimages/2013/09/17/1379461953-complaint.pdf</font></div><div><font size="4" face="Times New Roman">[5] http://www.pdc.wa.gov/MvcQuerySystem/CommitteeData/contributions?param=Tk81MjIgIDUwNw%3D%3D%3D%3D&year=2013&type=initiative</font></div><div><font size="4" face="Times New Roman">[6] http://blog.seattlepi.com/seattlepolitics/2013/09/17/grocery-manufacturers-laundered-donations-suit/</font></div><div><font size="4" face="Times New Roman">[7] http://blog.seattlepi.com/seattlepolitics/2013/10/04/corporate-laundering-suit-dismissed-for-now/</font></div><div><font size="4" face="Times New Roman">[8] http://www.theolympian.com/2013/10/04/2759071/olympia-judge-rejects-lawsuit.html</font></div><div><font size="4" face="Times New Roman">[9] http://fusewashington.org/momsforlabeling/</font></div><div><font size="4" face="Times New Roman">[10] http://www.gmaonline.org/forms/meeting/Microsite/EmergingLeaders13,1</font></div><div><font size="4" face="Times New Roman">[11] http://www.diversityinc.com/john-bryant/</font></div><div><font size="4" face="Times New Roman">[12] http://littlesis.org/person/1384/Brian_C_Cornell</font></div><div><font size="4" face="Times New Roman">[13] http://littlesis.org/person/107194/W_Anthony_Vernon</font></div><div><font size="4" face="Times New Roman">[14] http://www.coca-colacompany.com/our-company/operations-leadership-j-alexander-m-douglas-jr</font></div><div><font size="4" face="Times New Roman">[15] https://secure.yeson522.com/page/contribute/default?source=site-header</font></div><div><font size="4" face="Times New Roman">[16] http://www.alternet.org/tags/food-0</font></div><div><font size="4" face="Times New Roman">[17] http://www.alternet.org/tags/labeling</font></div><div><font size="4" face="Times New Roman">[18] http://www.alternet.org/tags/right-know</font></div><div><font size="4" face="Times New Roman">[19] http://www.alternet.org/tags/gmo</font></div><div><font size="4" face="Times New Roman">[20] http://www.alternet.org/%2Bnew_src%2B</font></div><div><font size="4" face="Times New Roman">=</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Right to free speech&nbsp; (First Amendment)</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">http://infochangeindia.org/corporate-responsibility/analysis/corporate-personhood-rights-without-responsibilities.html</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">No less eventful is the&nbsp; process of gradual acquisition of the right to free speech by corporations.&nbsp; Free speech was included as part of the bill of rights in the First Amendment&nbsp; to the American constitution almost immediately after its adoption in the late-18th&nbsp; century as it was realised that sufficient guarantees were not available for&nbsp; civil liberties. There is a long history of corporate attempts at appropriating&nbsp; rights under the First Amendment and acquiring natural person entitlements. One&nbsp; of the landmarks is the First National Bank of Boston case in 1978 where the court ruled&nbsp; that the bank had the First Amendment right to political speech like any&nbsp; person. But more interestingly the bank argued that since the corporation does&nbsp; not have a tongue it should be allowed to speak through its pocket and thus for&nbsp; a corporation, spending money and making political contributions was the same&nbsp; as free speech! The bank won the case in the Supreme Court based on the precedent&nbsp; set by the 1886 Santa Clara&nbsp; case.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The corporation’s right&nbsp; to influence elections was taken several degrees further by the momentous&nbsp; Citizen’s United vs Federal Election Committee case last year where the Supreme&nbsp; Court overturned a 1907 Act giving corporations a free hand for as much&nbsp; commercial spending as they would like during elections, again as a ‘natural&nbsp; person’ under the First Amendment free speech right.&nbsp; In the Citizen’s United 2010 case Supreme Court&nbsp; Judge Kennedy remarked, “The government has [I]muffled the voices[/I] (of&nbsp; corporations)[I] that best represent the most significant segments[/I] of the&nbsp; economy. And the electorate has been deprived of information, knowledge and&nbsp; opinion vital to its function (emphasis added).”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Now, what kind of ‘essential&nbsp; information’ has the electorate been thus far ‘deprived of’ which was corrected&nbsp; by the Supreme Court of the United States in 2010? This takes a very&nbsp; interesting turn if we read the 2010 judgment with another landmark Nike vs&nbsp; Kasky case. Against a barrage of reports on slave-like conditions in which Nike&nbsp; shoes were being manufactured in Vietnam and elsewhere, Nike went on a public&nbsp; relations overdrive and in 1997 its sports marketing director pledged in a&nbsp; letter to athletic programme directors and presidents of US universities that&nbsp; Nike’s manufacturers complied with “government regulations regarding minimum&nbsp; wages and overtime as well as occupational health and safety, environment&nbsp; regulations, workers’ insurance, and equal opportunity provisions.” When Mark&nbsp; Kasky discovered that this was all a fabrication and filed a case, a US Court&nbsp; of Appeals ruled in 2000 that Nike was only promoting its products, as any&nbsp; company would, could and should, and telling untruths was “within the core area&nbsp; of expression protected by the First Amendment”, thus implying that a&nbsp; corporation has a right to lie quite like any of us in our personal talk as&nbsp; part of the right to free speech. The judgment was overturned by the California&nbsp; Supreme Court but the case went all the way to the US Supreme Court in 2003&nbsp; where the who’s who of big business and media, like Microsoft, Pfizer, Exxon,&nbsp; Bank of America, Fox, New York Times and a large number of other corporations&nbsp; and surprisingly, the American Civil Liberties Union and even AFL-CIO (the&nbsp; largest federation of unions in the US), all stood in solidarity with Nike&nbsp; supposedly for the corporation’s right to ‘free speech’. Nike claimed, “To say&nbsp; that we have to only say things that are accurate [I]violates our First Amendment&nbsp; rights to free speech[/I] (emphasis added).” Most amazingly, after the&nbsp; arguments began, at some point the court decided to send it back to the California court and&nbsp; Nike settled it out of court with complainants for a trivial sum! So the&nbsp; corporate ‘right to lie’ stands as it is under the First Amendment and when&nbsp; read with the Citizens United case, gives an interesting turn to the meaning of&nbsp; free speech and elections in the ‘world’s oldest democracy’.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">=</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In the 1990s, the athletic company Nike was accused of running sweatshops -- factories that employ labor at substandard conditions and low wages -- in developing Asian countries. The story came to the fore even more in 2001. That year, Nike launched a shoe line that allowed customers to have whatever they pleased embroidered on the company's shoes. One MIT graduate student lodged his order: He wanted the word "sweatshop" embroidered on his pair.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The company refused his order, and the student circulated the e-mail Nike had sent him. The media took notice. In short order, stories of Nike's overseas labor practices made it into the pages of news outlets like the Wall Street Journal [source: The Industry Standard].</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In an ongoing public relations campaign, Nike said it did not use exploitative labor practices, and it actually protected workers' rights abroad. Based on proof that contradicted the PR blitz, a California man sued the company in 1998 for false advertising [source: BBC]. The company challenged the issue, saying that as an artificial person, it was allowed to lie. Lying, after all, is protected by the freedom of speech granted in the First Amendment.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Nike lost in the California Supreme Court, but appealed. After accepting the case, the Supreme Court deferred it back to the lower courts [source: New York Times]. Ultimately, the company settled the suit for $1.5 million, which went to a labor rights group [source: BBC]. In 2005, Nike published a report of the working conditions in its overseas factories, which included admissions of employee mistreatment [source: The Guardian].</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman"></font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">SALT LAKE CITY (AP) — Animal-welfare activists filed a lawsuit Monday to overturn a Utah law that prohibits undercover filming while trespassing at farm operations, saying it restricts free expression.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The Animal Legal Defense Fund and People for the Ethical Treatment of Animals filed the legal action in federal court in Salt Lake City.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The Utah law makes it a misdemeanor to trespass on private property to record images or sounds of a livestock operation.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Supporters of the law say it's intended to protect property rights.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"It has nothing to do with animals — it's people trespassing on farms" to make recordings, said state Sen. David Hinkins, R-Orangeville, a cattle operator who also breeds race horses. "If people can sneak onto anybody's property, then we don't have any rights."</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The groups behind the lawsuit have the backing of attorneys at the University of Denver's Sturm College of Law and constitutional scholar Erwin Chemerinksy of the University of California at Irvine.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"The Utah law is very much directed at restricting speech, and especially particular messages," Chemerinksy said. "This is exactly what the First Amendment prohibits."...http://www.huffingtonpost.com/2013/07/22/utah-ag-gag_n_3636036.html?view=print&comm_ref=false</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;outcome?</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman"></font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">teacher at bush rally arrested</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">MEDFORD – President Bush taught three Oregon schoolteachers a new lesson in irony – or tragedy – Thursday night when his campaign removed them from a Bush speech and threatened them with arrest simply for wearing t-shirts that said “Protect Our Civil Liberties,” the Democratic Party of Oregon reported.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The women were ticketed to the event, admitted into the event, and were then approached by event officials before the president’s speech. They were asked to leave and to turn over their tickets – two of the three tickets were seized, but the third was saved when one of the teachers put it underneath an article of clothing.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">http://www.bendbugle.com/2004/10/teachers-t-shirts-bring-bush-speech-ouster/&nbsp; see teacherTshirt pix saved</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">--</font></div><div><font size="4" face="Times New Roman">The federal government has agreed to pay $80,000 to a Texas couple arrested for wearing anti-President Bush T-shirts at a 2004 event with the president in Charleston.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Jeff and Nicole Rank went to Bush's Fourth of July speech at the state Capitol wearing homemade T-shirts with a red circle with a bar through it over the word "Bush."</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">On the back, hers read "Love America, Hate Bush" and his read "Regime Change Starts At Home."</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">When the couple refused to cover up their shirts, they were arrested and charged with trespassing. Those charges were later dropped by the city of Charleston, and city officials later apologized.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The American Civil Liberties Union subsequently filed a lawsuit on the Ranks' behalf in federal court in Charleston, alleging that the Ranks' First Amendment right to free political speech had been violated.&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;http://www.commondreams.org/news/2007/08/17/couple-arrested-bush-rally-settles-lawsuit-80000</font></div><div><font size="4" face="Times New Roman">As they made their way through security, they wore shirts over the white undershirts with the slogans, he said. Their intention was not to attract a lot of attention when they revealed their handiwork, but to avoid antagonizing Bush supporters as they stood in line.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"It's kind of ironic that we wore the outer shirts to minimize the impact of our shirts, not to maximize," he said.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">About 10 minutes after they displayed their undershirts, two Shelley Moore Capito staffers who were working the event approached them and told the couple they had to take off their T-shirts or leave the event, Jeff Rank said.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"We tried to explain to them that it was well within our right to stand there and wear these T-shirts, just as people around us had the right to wear pro-Bush and Cheney T-shirts," he said.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">When it became clear that they were going to be ejected, they sat down and made the officers handcuff them, he said, because they wanted it clear that they were being involuntarily removed.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"To add to the thickness of the irony, as we're being led out, 'America the Beautiful' is playing over the loudspeaker," Jeff Rank recalled.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">According to an edited version of an October 2002 Presidential Advance Manual posted on the ACLU's Web site, organizers actively tried to prevent protesters from going to presidential appearances.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"Proper ticket distribution is vital to creating a well-balanced crowd and deterring potential protesters from attending events," the manual states.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"Rally squads" were also used to drown out protesters by creating a shield between demonstrators and the press, according to the manual.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">When Nicole Rank returned to work after the holiday weekend, FEMA officials sent her home to Texas.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"I was told that my actions had compromised FEMA's mission in West Virginia and I was being relieved from duty," she said.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Shortly thereafter, the couple contacted the state branch of the ACLU....</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">=</font></div><div><font size="4" face="Times New Roman">see also commercial free sp, right to lie, unlimited campaign $ secret</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">=</font></div><div><font size="4" face="Times New Roman">wlf //NRA&nbsp;&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">http://www.ahrp.org/infomail/04/11/18.php ?</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">http://pharmamkting.blogspot.com/2005/06/wlf-watches-fda-watching-drug-ads.html</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Washington Legal Fdn is to the first amendment what the NRA is to the second amendment. That is, every argument by WLF begins and ends with the first amendment as it applies to a special interest group -- i.e., businesses like the pharmaceutical industry.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">---</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Warning: include(/Templates/headermain.php) [function.include]: failed to open stream: No such file or directory in /home/ahrp/public_html/infomail/04/11/18.php on line 19</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Warning: include() [function.include]: Failed opening '/Templates/headermain.php' for inclusion (include_path='.:/usr/lib/php:/usr/local/lib/php') in /home/ahrp/public_html/infomail/04/11/18.php on line 19</font></div><div><font size="4" face="Times New Roman">Daniel Troy Legacy: Public Virtually Defenseless against Unsafe Drugs</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Thu, 18 Nov 2004</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The Associated Press reports that at a Congressional hearing today, Dr. David Graham a drug safety expert at the FDA told the Senate Finance Committee that the public is "virtually defenseless" if another medication such as Vioxx proves unsafe after it has won Food and Drug Administration approval.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"I would argue that the FDA as currently configured is incapable of protecting America against another Vioxx." Dr. Graham warned that the arthritis drug had been linked to an increased risk of heart attack and stroke. He also testified that there were at least five other drugs on the market that warrant scrutiny: the acne drug Accutane, the weight loss drug Meridia, the anti-cholesterol drug Crestor, the pain reliever Bextra, and the asthma drug Serevent.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Dr. Sandra Kweder of FDA's office of new drugs, did not agree with Graham's assessment of the risk posed by the five drugs. She said "there is no magic formula" to determine which drugs most raise the most serious safety concerns.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">If the FDA would at least monitor MedWatch--its own database of adverse drug event reports - we would not have to wait for a "magic formula."</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Dikinson's FDA Webview reports (below) that Daniel Troy hand-picked Gerald F. Masoudi as his successor as Chief Counsel. Thus, Troy's legacy may not be over. Dickinson and Newsday (excerpt below) provide insight into how the FDA became the permissive lap dog of the food, drug, and cosmetics industry when Troy, a political appointee with long standing ties to industry, ran the agency and methodically downgraded public safety issues.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">There are many speculations about what prompted Daniel Troy to resign: perhaps the prospect of having to testify under oath before congressional committees may have influenced his resignation which was announced on Nov 16, effective Nov 28.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">There has been growing public criticism of FDA's failure to protect the public from hazardous drugs and the agency's continued failure to monitor drug safety, coupled with the inordinate influence of industry in setting policy. Troy's active intervention on behalf of drug manufacturers in lawsuits filed by individuals who had been harmed by drugs or devices--whose adverse effects were concealed--was a radical departure from FDA policy. Troy's legal argument rested on the infallibility of "FDA's scientific judgment" about safety.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">One of the legal briefs submitted by Daniel Troy denied the need for a suicide warning on the drug label. However, FDA's judgments have been shown to be unscientific--inasmuch as crucial safety evidence from clinical trials had been concealed. Industry selectively reported clinical trial results, hiding the adverse findings. When challenged publicly with evidence from antidepressant pediatric trials, the FDA was forced to re-analyze the complete data. Only then did the FDA reach a scientifically valid judgment: Black Box warnings were issued (Oct 15, 2004), acknowledging a causal relation between antidepressants and increased suicide risk.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The basis for Troy's claims rested on scientifically faulty FDA-judgments that had relied on partial - therefore unscientific - information. This demonstrates that entrusting health / safety issues to a single agency is bad public policy. It invites manipulation by powerful stakeholders, undermining rational, science-based health / safety determinations. Neither the FDA nor any of us mortals is infallible; we all prone to errors in judgment.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Contact: Vera Hassner Sharav&nbsp;</font></div><div><font size="4" face="Times New Roman">212-595-8974</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">FDA Webview Reports /Review/Update/DTC Marketer)</font></div><div><font size="4" face="Times New Roman">FDAers Think Troy Weakened Them, Worry About Masoudi</font></div><div><font size="4" face="Times New Roman">11/17/2004</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">As chief counsel Daniel E. Troy's impending departure from FDA is being noisily applauded by external critics, it is also being welcomed, quietly, by many program managers inside the agency who say that he has weakened them in meeting new regulatory and scientific public health challenges. And they worry about his apparent successor, raw newcomer Gerald F. Masoudi, who is an unknown factor but who they see as having been hand-picked by Troy.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">For example, a high official told us 11/17, in sharply narrowing FDA's traditional broad interpretations of statutory authority, Troy removed many previously effective tools for dealing with complex new issues not addressed in the Food, Drug and Cosmetic Act, such as biotechnology, gene transplants, dietary supplements, health claims for foods and others.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"Of course, Dan would say 'Well, you have tried to interpret the statute in a broad way in the past, and now you've started losing in court,'" this official said. Such court losses - e.g., on the agency's tobacco rule, and a string of First Amendment cases - were seen by Troy as being likely to continue so long as the agency persisted in exercising its traditional broad statutory interpretations, so he set about trimming the agency's sails.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Instead of helping his "client" (FDA management) attain its goals, Troy routinely advised that it lacked statutory authority to reach those goals, this official said. "In writing regulations, we have attempted to put in requirements that might not have been explicitly in the statute, but that we would traditionally have used, be it records authority, or requirements for certain sorts of reporting by a firm. He would say, 'Well, no, you don't have that authority, I'm going to scale that back.'"</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">One example of this was Troy's rejection of a CVM plan to regulate genetic transfers in food-producing animals under the new animal drug regulations. CVM protested that the 1938 FD&C Act could not have anticipated gene transfer technology, and that Congress has not been able to deal effectively with this issue, so creative regulation is the only way. "You're putting a compound in a fish or a cow to cause it to grow differently - the scientists think that's essentially the same as putting a drug in the animal," a senior CVM official said. Troy refused to budge.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In a lengthening stream of such narrowing decisions, Troy managed to restrict FDA's ability to use its statutes creatively, and this in turn deterred mid-level managers from advocating new approaches to emerging scientific issues, leaving the agency looking - and feeling - weak. There is a philosophical basis for this result that many see in Bush Administration policies: reduce the power of government to "interfere" in the free working of the marketplace.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Troy's past use of forums provided by the ultra-conservative/libertarian Federalist Society and his actions since as chief counsel present a sharp contradiction between FDA's traditional modus operandi and that society's dictum: "The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequences would be the substitution of their pleasure for that of the legislative body." In other words, if FDA did not get from Congress what it needs, it should not try litigation, or regulatory initiatives that might lead to litigation.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">There are two ways FDAers look at this posture: (1) Troy was trying to protect the agency from losing any cases in court, and (2) Troy was trying to prevent it from winning any cases in courts that could, in Federalist parlance, legislate from the bench.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Troy's resignation has thrust his apparent choice of successor onto center stage. As expected, HHS general counsel Alex Azar named Masoudi acting chief counsel "until a permanent replacement is appointed," according to an 11/16 statement by acting commissioner Lester Crawford. Informed sources speculated that Masoudi could be that appointee. A 1993 graduate of the University of Chicago Law School, he joined FDA as deputy associate general counsel/deputy chief counsel earlier this month, and did not respond to requests for his biography and an interview.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">However, an Internet search revealed that he authored in 1993, University of Chicago Law Review article, Kosher Food Regulation and the Religion Clause of the First Amendment, which has since become very widely referenced on various legal Web sites and by other scholars.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">At Kirkland & Ellis, whose Web site no longer mentions him, he was one of four attorneys who in 1999 sued three cable Internet companies for client GTE in Western Pennsylvania federal court alleging Sherman Antitrust Act violations in the bundling of high-speed cable data transport services. In 2001, he represented the H.J. Heinz Co. in defending against a Federal Trade Commission suit that sought to block a proposed merger between Heinz and Beech-Nut Foods.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">One of Masoudi's most recent cases at Kirkland & Ellis involved a rate-regulation case this year before the Louisiana Public Service Commission in which he represented Arkansas Electric Energy Consumers, Inc.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Meanwhile, outside critics of Troy have raised their rhetoric against him. In a public e-mail to acting commissioner Lester Crawford 11/17, Alliance for Human Research Protection director Vera Hassner Sharav charged that Troy "was a symbol of what is rotten at the FDA: the pharmaceutical industry's influence has ensured that business interests take precedence over public safety.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"Industry-influenced advisory committees," she continued, "have led to the approval of lethal drugs that were widely marketed until the death toll became publicly known. Troy actively intervened on behalf of pharmaceutical companies in civil cases brought by individuals who sought justice in the court. Let us hope that other senior FDA officials who have similarly disregarded their role as public servants and have shielded drug manufacturers who concealed the hazardous effects of their products, resulting in preventable deaths, will resign as well.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"The FDA has been derailed from its mission, which is to ensure that the public is protected from unsafe and ineffective drugs, and that physicians and the public rare provided scientifically accurate information.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"Whereas Troy intervened on behalf of pharmaceutical companies claiming that the FDA's authority pre-empted all others in matters of drug safety - even when they concealed lethal drug effects - New York State Attorney General, Eliot Spitzer, brought action against GlaxoSmithKline, charging the company with fraudulent marketing of Paxil (seroxat). That action undermined Troy's pre-emption authority argument - and ultimately undermined his standing.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"In light of the skyrocketing expenditures for prescription drugs - U.S. consumers spent $216 billion on prescription drugs last year, up 11.5% in a year (according to IMS Health) - Dr. Lester Crawford's claim that Daniel Troy's 'reforms' saved consumers $35 billion, is not credible." Meanwhile, Rep. Maurice Hinchey (D-NY), who has had several policy run-ins with Troy, said 11/16 the resignation announcement (see earlier story) "is a rare bright spot in what has been a dark period for FDA." According to Hinchey, Troy worked tirelessly to weaken FDA's ability to face challenges such as the withdrawal of Vioxx and the flu vaccine shortage. "Under Troy's direction," he said, "the agency has argued in court that manufacturers, some of whom he represented in private practice, should not be held responsible if their products injure customers. He wasted precious taxpayer dollars on other personal ideological pursuits as well. Instead of working to strengthen FDA's mandated role as a guardian of public health, Troy has made it the agency's mission to protect corporate profits." Hinchey called on Crawford to "return FDA to its appropriate mission... by removing politics from the chief counsel's office and appointing a career civil servant" as Troy's replacement.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">http://www.newsday.com/news/politics/ny-usfda114002814oct11,0,5464956,print.story</font></div><div><font size="4" face="Times New Roman">NEWSDAY</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">ERASING THE RULES Industry has some friends on the inside</font></div><div><font size="4" face="Times New Roman">Bush-appointed administrators at the FDA have consistently sided with the interests of business</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">BY THOMAS FRANK</font></div><div><font size="4" face="Times New Roman">October 11, 2004</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Two years ago, California walnut growers conceived the perfect promotion: put labels on packages saying walnut consumption reduces the risk of heart disease.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">There was one problem.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The Food and Drug Administration demanded substantial evidence to allow such claims, and it found that studies the growers touted were "of poor to moderate quality" or "not directly relevant."</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Even three outside experts the FDA hired said a link between walnuts and heart disease was "uncertain."</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">But then the agency relaxed its standards. And on March 9, it reached an unprecedented decision: Labels could claim that walnuts "may" reduce heart-disease risk while noting that research was "not conclusive."</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The eased standards were long sought by the food industry, which found key allies in the Bush administration FDA. Top appointees who once advocated for FDA-regulated industries have heeded industry lobbying in ways that medical groups and consumer advocates say jeopardize public health.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">After food-industry groups complained, a top appointee killed a measure to discourage consuming a cholesterol-raising fat. Plans to eliminate misleading sunscreen labels have been tabled following cosmetics-industry complaints. A post-Sept. 11 plan to help contain food contamination is nearly a year late as food-processing groups have objected.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Letters directing drug companies to stop false or misleading ads are reduced and delayed under new policy that some critics say increases the public's exposure to misinformation.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In a dramatic legal novelty, the FDA has intervened for manufacturers in lawsuits, urging courts to dismiss damages claims against them. FDA briefs have helped the world's two largest drug companies win product-liability cases.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The FDA says courts are not equipped to judge a product's safety. On regulation, officials say their position reflects court rulings that warn about restricting commercial speech. Allowing inconclusive health claims on food labels such as walnuts gives consumers more information, the agency says.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"Naturally, our approach to enforcement may evolve as we adapt to new FDA legal authorities or evolving science and technology," the FDA said in a recent statement. "But the goal of judicious enforcement of the law, to fulfill our mission of promoting and protecting the public health, remains constant."</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The walnut industry is already profiting from the new labels that will start next year. Walnut processing giant Diamond of California says publicity about them has helped lift sales 30 percent over last year.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">But the American Medical Association said consumers may be duped. The walnut claims "have a reasonable chance of being erroneous," it said. "An educated consumer will not know whether to believe or not to believe the claim."</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Rep. Henry Waxman (D-Calif.) wrote the 1991 law requiring "substantial scientific evidence" for health claims. "Congress didn't want food manufacturers to make claims without substantiation," he said. "The clear language of the statute is just being ignored."</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The influence behind many FDA decisions is chief counsel Daniel Troy, who was a sharp critic of the agency before President George W. Bush put him in charge of its legal affairs.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">A Queens-born Columbia Law School standout, Troy, 44, came to the FDA primed for activism: Clerk for conservative icon Robert Bork; partner at blue-chip Wiley, Rein & Fielding; scholar at the pro-business American Enterprise Institute; litigant for the anti-regulatory Washington Legal Foundation.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Representing a tobacco company against the FDA in the late 1990s, Troy helped win a landmark Supreme Court ruling blocking the agency's attempt to regulate tobacco products.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Litigating for the legal foundation, which drug-company foundations help fund, Troy challenged the FDA's restrictions on promoting drugs for uses the FDA has not approved.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The policy, Troy wrote in 1999, reflects "an overzealous FDA."</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Appointed in August, 2001, Troy had vast authority. With no FDA commissioner until November 2002, Troy reigned for more than a year as top administrator in an agency that regulates 22 percent of the U.S. economy.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"He sent a signal to companies that if you want to deal with the FDA on a number of issues, he's the man to see," said a senior FDA official.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In three years, Troy has held 129 meetings with lobbyists and others with issues before the FDA.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Mark McClellan, commissioner from October 2002 to March 2004, held 30 such meetings, FDA records show.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">From 1998 to 2001, Troy's predecessor, Margaret Porter, held one meeting.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"She did not directly interact with industry," said Jane Henney, FDA commissioner in 1999 and 2000. "She felt those interactions were done by the staff, and [lobbyists] should make their case to them."</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">But the Bush administration made the chief counsel a political appointee for the first time since the 1980s, easing out civil-servant Porter and empowering Troy.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">At the end of a meeting with cosmetics-industry officials two months into his job, Troy decided to delay indefinitely sunscreen regulations the industry opposed.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"We asked them to put it off. They've done what we asked," said Tom Donegan, general counsel of the Cosmetic, Toiletry and Fragrance Association.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Donegan's group opposed a proposed ban on sun-protection factors higher than 30, which the FDA found provided "extremely small" amounts of extra protection. Donegan told Troy the ban raised free-speech issues.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"He's very receptive," Donegan said.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The regulations, developed after 21 years of study and debate, also would have banned from sunscreen labels starting in 2003 terms such as "sunblock" and "waterproof," which it determined were "misleading" and "unsupported." Their use remains common.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Food-industry officials got Troy's help after a National Academy of Sciences study requested by the FDA recommended "trans fat consumption be as low as possible" because it raised cholesterol. The FDA wanted that statement on food labels starting in 2006.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Industry officials who met Troy said the label may violate the First Amendment and could lead consumers and food processors to substitute similarly harmful saturated fat for trans fat.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Xxxcut xxx</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Copyright © 2004, Newsday, Inc.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
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</font></div><div><font size="4" face="Times New Roman">=</font></div><div><font size="4" face="Times New Roman">Courthouse News [1] / By Lorraine Bailey [2]</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Ex-Marine Arrested for Wearing Wrong T-Shirt at Supreme Court!</font></div><div><font size="4" face="Times New Roman">July 4, 2013&nbsp;&nbsp;</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">Police had probable cause to arrest a Marine Corps veteran in the Supreme Court building for wearing a jacket that said "Occupy Everywhere," a federal judge ruled.</font></div><div><font size="4" face="Times New Roman">&nbsp; &nbsp; &nbsp;Fitzgerald Scott, a Marine Corps veteran, entered the Supreme Court building on Jan. 20, 2012, wearing a jacket painted with the words, "Occupy Everywhere." The Occupy movement had scheduled that day for an organized protest outside of the courthouse.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp; &nbsp; &nbsp;While Scott was looking at the exhibits on display, Deputy Chief Timothy Dolan approached him and told Scott that he could not wear the jacket in the building because it was comparable to a sign or demonstration.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp; &nbsp; &nbsp;Dolan told Scott he must either take off the jacket or leave the building. When Scott refused to do either, Dolan instructed another officer to place Scott under arrest for unlawful entry. Scott was released the same day, and charges against him were later dropped.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp; &nbsp; &nbsp;Scott then filed suit&nbsp; [3], arguing that the "United States is liable for the false arrest and imprisonment of Mr. Scott because Pfc. Freeman arrested Mr. Scott without probable cause."</font></div><div><font size="4" face="Times New Roman">&nbsp; &nbsp; &nbsp;U.S. District Judge Amy Jackson dismissed the action Tuesday, finding that the "Supreme Court Police had probable cause to arrest Scott for violating section 6135 because Scott's actions fell squarely within the plain language of the display clause: he was displaying a device (his jacket) in the building which had been adapted to bring public attention to the 'Occupy' movement." (Parentheses in original.)</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp; &nbsp; &nbsp;Jackson noted that her ruling in this case is not based on "whether a court could ultimately find that the application of the display clause in this instance violated Scott's First Amendment rights, but whether the officers knowingly ignored settled, indisputable law when they made the determination on the scene to effect the arrest."</font></div><div><font size="4" face="Times New Roman">&nbsp; &nbsp; &nbsp;Scott has no First Amendment ground for his claims because "at the time of Scott's arrest, the application of section 6135 - and its predecessor 40 U.S.C. § 13k8 - to individuals in the Supreme Court building and plaza had been upheld as constitutional," the 14-page opinion states.</font></div><div><font size="4" face="Times New Roman">&nbsp; &nbsp; &nbsp;"The fact that long after Cohen [v. California], this statute had been upheld as constitutional on its face and as applied to individuals in similar situations defeats Scott's assertion that his arrest violated clear constitutional law," Jackson added.</font></div><div><font size="4" face="Times New Roman">See more stories tagged with:</font></div><div><font size="4" face="Times New Roman">supreme court [4],</font></div><div><font size="4" face="Times New Roman">occupy movement [5],</font></div><div><font size="4" face="Times New Roman">Marine Corp Vet [6],</font></div><div><font size="4" face="Times New Roman">freedom of expression [7]</font></div><div><font size="4" face="Times New Roman">Source URL: http://www.alternet.org/news-amp-politics/vet-arrested-wearing-wrong-t-shirt</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">----</font></div><div><font size="4" face="Times New Roman">mcclatchy blog</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Supreme Court 'Occupy Everywhere' protester loses suit</font></div><div><font size="4" face="Times New Roman">A #Scotus protester arrested while wearing an "Occupy Everywhere" slogan on a jacket has lost a false-arrest lawsuit.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In a 14-page decision, U.S. District Judge Amy Berman Jackson dismissed the 2012 lawsuit brought by Fitzgerald Scott. Scott was arrested in January 2012 and charged with unlawful entry, after a Supreme Court police officer told him he could not be inside the court building wearing the slogan-bearing jacket. (There actually is some dispute over what, exactly, the jacket's slogan said, but it definitely had the word Occupy.)</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The criminal charges were eventually dropped. Scott sued, and brought into his arguments the claim that his arrest violated the First Amendment.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Jackson concluded police had reasonable cause to arrest Scott, under a federal statute that makes it unlawful to parade, stand or move in processions or assemblages" inside the court, or to display "a flag, banner or device designed or adapted to bring into public notice a party, organization or movement."</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Intriguingly, just a few weeks ago, a different D.C.-based judge found the statute unconstitutional, a finding that Jackson did not impinge on the facts in Scott's cas</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">- See more at: http://blogs.mcclatchydc.com/law/2013/07/supreme-court-occupy-everywhere-protestor-loses-suit.html#sthash.GQbUtLTD.dpuf</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Read more here: http://blogs.mcclatchydc.com/law/2013/07/supreme-court-occupy-everywhere-protestor-loses-suit.html#storylink=cpy</font></div><div><font size="4" face="Times New Roman">July 02, 2013</font></div><div><font size="4" face="Times New Roman">Supreme Court 'Occupy Everywhere' protester loses suit</font></div><div><font size="4" face="Times New Roman">A #Scotus protester arrested while wearing an "Occupy Everywhere" slogan on a jacket has lost a false-arrest lawsuit.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In a 14-page decision, U.S. District Judge Amy Berman Jackson dismissed the 2012 lawsuit brought by Fitzgerald Scott. Scott was arrested in January 2012 and charged with unlawful entry, after a Supreme Court police officer told him he could not be inside the court building wearing the slogan-bearing jacket. (There actually is some dispute over what, exactly, the jacket's slogan said, but it definitely had the word Occupy.)</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The criminal charges were eventually dropped. Scott sued, and brought into his arguments the claim that his arrest violated the First Amendment.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Jackson concluded police had reasonable cause to arrest Scott, under a federal statute that makes it unlawful to parade, stand or move in processions or assemblages" inside the court, or to display "a flag, banner or device designed or adapted to bring into public notice a party, organization or movement."</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Intriguingly, just a few weeks ago, a different D.C.-based judge found the statute unconstitutional, a finding that Jackson did not impinge on the facts in Scott's case.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">- See more at: http://blogs.mcclatchydc.com/law/2013/07/supreme-court-occupy-everywhere-protestor-loses-suit.html#sthash.GQbUtLTD.dpuf</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Read more here: http://blogs.mcclatchydc.com/law/2013/07/supreme-court-occupy-everywhere-protestor-loses-suit.html#storylink=cpy</font></div><div><font size="4" face="Times New Roman">July 02, 2013</font></div><div><font size="4" face="Times New Roman">Supreme Court 'Occupy Everywhere' protester loses suit</font></div><div><font size="4" face="Times New Roman">A #Scotus protester arrested while wearing an "Occupy Everywhere" slogan on a jacket has lost a false-arrest lawsuit.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In a 14-page decision, U.S. District Judge Amy Berman Jackson dismissed the 2012 lawsuit brought by Fitzgerald Scott. Scott was arrested in January 2012 and charged with unlawful entry, after a Supreme Court police officer told him he could not be inside the court building wearing the slogan-bearing jacket. (There actually is some dispute over what, exactly, the jacket's slogan said, but it definitely had the word Occupy.)</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The criminal charges were eventually dropped. Scott sued, and brought into his arguments the claim that his arrest violated the First Amendment.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Jackson concluded police had reasonable cause to arrest Scott, under a federal statute that makes it unlawful to parade, stand or move in processions or assemblages" inside the court, or to display "a flag, banner or device designed or adapted to bring into public notice a party, organization or movement."</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Intriguingly, just a few weeks ago, a different D.C.-based judge found the statute unconstitutional, a finding that Jackson did not impinge on the facts in Scott's case.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">- See more at: http://blogs.mcclatchydc.com/law/2013/07/supreme-court-occupy-everywhere-protestor-loses-suit.html#sthash.GQbUtLTD.dpuf</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Read more here: http://blogs.mcclatchydc.com/law/2013/07/supreme-court-occupy-everywhere-protestor-loses-suit.html#storylink=cpy</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">---</font></div><div><font size="4" face="Times New Roman">=</font></div><div><font size="4" face="Times New Roman">SECOND</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">2/17 see main</font></div><div><font size="4" face="Times New Roman">capt 819</font></div><div><font size="4" face="Times New Roman">=</font></div><div><font size="4" face="Times New Roman">---</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">1ST AMEND</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Corporate Speech and the First Amendment: History, Data, and Implications</font></div><div><font size="4" face="Times New Roman">Constitutional Commentary, Forthcoming</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">41 Pages Posted: 9 Mar 2015 Last revised: 14 May 2015</font></div><div><font size="4" face="Times New Roman">John C. Coates, IV</font></div><div><font size="4" face="Times New Roman">Harvard Law School</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Date Written: February 27, 2015</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Abstract</font></div><div><font size="4" face="Times New Roman">This Article draws on empirical analysis, history, and economic theory to show that corporations have begun to displace individuals as direct beneficiaries of the First Amendment and to outline an argument that the shift reflects economically harmful rent seeking.&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The history of corporations, regulation of commercial speech, and First Amendment case law is retold, with an emphasis on the role of constitutional entrepreneur Justice Lewis Powell, who prompted the Supreme Court to invent corporate and commercial speech rights. The chronology shows that First Amendment doctrine long post-dated both pervasive regulation of commercial speech and the rise of the U.S. as the world’s leading economic power – a chronology with implications for originalists, and for policy. Supreme Court and Courts of Appeals decisions are analyzed to quantify the degree to which corporations have displaced individuals as direct beneficiaries of First Amendment rights, and to show that they have done so recently, but with growing speed since Virginia Pharmacy, Bellotti, and Central Hudson.&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Nearly half of First Amendment challenges now benefit business corporations and trade groups, rather than other kinds of organizations or individuals, and the trend-line is up. Such cases commonly constitute a form of corruption: the use of litigation by managers to entrench reregulation in their personal interests at the expense of shareholders, consumers, and employees. In aggregate, they degrade the rule of law, rendering it less predictable, general and clear. This corruption risks significant economic harms in addition to the loss of a republican form of government.</font></div><div><font size="4" face="Times New Roman">----</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">https://washingtonmonthly.com/magazine/janfeb-2014/the-corporate-free-speech-racket/</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">very long, cf 2 other neutral/con by kent g?</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">January/February 2014</font></div><div><font size="4" face="Times New Roman">The Corporate “Free Speech” Racket</font></div><div><font size="4" face="Times New Roman">How corporations are using the First Amendment to destroy government regulation.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">by Haley Sweetland Edwards</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In late summer 2011, the National Labor Relations Board (NLRB) released a new rule requiring businesses to put up an eleven-by-seventeen-inch black-and-white poster notifying employees of their rights under federal law.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The poster, drafted over the course of a year by a committee of rule makers taking into account more than 7,000 public comments and dozens of meetings with industry groups, labor unions, and “right-to-work” advocacy organizations, emerged as would have been expected: even-keeled and rather bland. Beneath the official NLRB seal and above the phrase “This is an official government poster,” it informed employees that they have the right to join or not to join a union, and that they cannot be coerced into doing either.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Still, the business community was incensed. Describing the new rule as yet another government intrusion that would do nothing more than “create unemployment,” “weaken the economy,” and cause “immediate, irreparable harm for which no adequate remedy at law exists,” a coalition of industry groups led by the U.S. Chamber of Commerce and the National Association of Manufacturers (NAM) launched a firestorm of litigation, eventually suing the agency in two federal appellate courts.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">On its face, this little drama isn’t all that surprising. For the past decade or so, industry groups have made a habit of waging war in the form of endless litigation on regulatory agencies, hoping to slow the rule-making process, drain agency resources, and, when possible, get final rules thrown out. In most cases, these lawsuits play out in the weedy battleground of administrative law, where lawyers tussle over economic analyses or some minutiae within the Administrative Procedure Act. But this time was different.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">This time, NAM, the biggest trade group in the country, was arguing that by forcing companies to “engage in speech they would not otherwise issue,” the government was “in violation of their rights under the First Amendment.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">And that, dear readers, is a pretty ballsy claim. For one, it’s a little like dealing with your gopher problem by firebombing the neighborhood. By claiming that the government cannot, under the Constitution, compel companies to “engage in speech they would not otherwise issue,” NAM is essentially undercutting nearly all economic regulation. “If that seems alarmist, it’s not,” wrote University of Tulsa law professor Tamara Piety, the author of Brandishing the First Amendment. In the legal context, the current definition of “speech” is famously fuzzy and could, depending on the situation, include very nearly everything a company does, from advertising and performing financial transactions to transferring data and utilizing computer algorithms. So if NAM’s claim were true, it’s very possible that the government couldn’t regulate any of those activities. “If you cannot regulate commercial speech,” Piety wrote, “you cannot regulate commerce, period.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The other reason it’s such a ballsy claim is simply that until very recently, it would have been laughed out of court. Most jurisprudence from at least the past eighty or so years backs up the idea that the government, acting in the interest of the greater public, has the authority to force companies to convey certain non-ideological, government-mandated messages, so long as it’s clear that it’s the government “speaking,” not the company. Those messages can take the form of posters or warning labels, or those little placards in bathrooms reminding employees to wash their hands, or some other form of government-mandated “fine print” informing consumers, investors, shareholders, employees, or job seekers about risks or rights or government protections.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">So with that, hold on to your socks. In September 2012, a three-judge panel of the U.S. Court of Appeals in the D.C. Circuit, made up of A. Raymond Randolph and Karen Henderson, both appointed by George H. W. Bush, and Janice Rogers Brown, a George W. Bush appointee, heard the case. And in May last year, they published their final decision, striking down the NLRB’s rule—on First Amendment and statutory free speech grounds.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">It did not matter that the “speech” in question here was a non-ideological poster clearly stating U.S. law, the judges said. And it did not matter that the rule placed no other constraints on companies’ speech or on the free flow of information. (The mere act of compelling a company to “host or accommodate another speaker’s message” was enough to violate its free speech, according to the opinion.) And it did not matter that, in 2003, this same court—and the same judge, Randolph!—had confirmed the legality of President George W. Bush’s executive order requiring federal contractors to put up explicitly anti-union posters in their workplaces on the grounds that “[a]n employer’s right to silence is sharply constrained in the labor context and leaves it subject to a variety of burdens to post notices of rights and risks.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">It is tempting, of course, to simply write off this decision; to chock it up to the fact that it had to do with organized labor, an incendiary topic these days, or that it was decided by a very conservative panel on a very conservative court. After all, Republican senators repeatedly filibustered Obama nominees to precisely this court, leading Democrats last November to end filibusters for all nominees except those for the Supreme Court. And indeed, ideology was a factor. But there’s also something else going on here.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">As crazy as this decision was, as ill-founded and sweeping in its implications for government regulations going forward, it’s not exactly an outlier. In the past decade, both the U.S. Supreme Court and lower federal courts have begun, with increasing frequency, to strike down rules and sometimes entire laws, on the grounds that they infringe on companies’ First Amendment rights to free speech and expression.&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">This spring, for example, the Supreme Court will hear a case brought by the Christian-owned national craft supply chain, Hobby Lobby, claiming that the mandate in Obamacare requiring corporations to pay for some of their employees’ contraception is a violation of the company’s First Amendment right of religious expression.&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In another pending case, the Department of Justice filed a suit alleging that the credit rating agency Standard & Poor’s behaved fraudulently in giving high, and often AAA, ratings to toxic securities before the housing collapse. S&P is claiming that the DOJ’s case is retaliatory and therefore a violation of its First Amendment rights. As Columbia law professor Tim Wu put it in the New Republic last year, it’s tempting to call industry’s use of the First Amendment “the new nuclear option for undermining regulation, except that its deployment is shockingly routine.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The mother of all corporate First Amendment cases is, of course, Citizens United, in which the Supreme Court held in 2010 that any law constraining corporate political expenditures was a violation of companies’ rights to free speech. But it neither began nor ended there.&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Just a year after that precedent-contorting decision, the Supremes scrapped a Vermont state law on similar grounds. The law restricted data miners from selling pharmacy records to pharmaceutical companies, which were, in turn, using that data to target certain doctors for their sales pitches. The Vermont law was designed to protect doctors’ privacy and control health care costs, but the Court decided those weren’t compelling enough state interests to warrant violating the companies’ First Amendment-protected commercial speech. It was one of those decisions, a constitutional law professor told me, that was “like getting whacked by a two-by-four: what the hell? Where did that come from?”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">There have been dozens more cases like it. Over the past few years, corporations like Nike, Verizon, Google, and the big credit ratings agencies like S&P and Moody’s have been crafting innovative new First Amendment defenses to parry all sorts of “government intrusions,” from antitrust suits to false advertising.&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Last summer, the U.S. Chamber of Commerce attacked two new Securities and Exchange Commission rules mandated by the Dodd-Frank Wall Street Reform and Consumer Protection Act that required publicly traded international corporations, including Exxon and Chevron, to disclose certain information to the public (such as how much they were paying host countries for their extraction rights). Forcing those companies to speak, the Chamber argued, was a violation of their First Amendment-protected commercial speech. The Chamber and Business Roundtable have appealed one of those cases to the D.C. Court of Appeals, which will hear it this month.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The same court will also hear another case this month from the American Meat Institute, representing behemoth meat-packers like Tyson and Cargill, which is taking a similar tack in an attempt to kill a Department of Agriculture rule mandated by consumer protection requirements in the 2002 Farm Bill. It requires meat-packers to label their products indicating in what country the animal, or animals, in their meat had been born, raised, and slaughtered. Forcing companies to use those labels, the meat-packers say, is equivalent to making them engage in speech they would not otherwise issue and is therefore a violation of their First Amendment-protected commercial speech.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">While none of these cases is by itself a game changer, the collective weight of all of them—combined with sweeping decisions, like the one in the recent NLRB case—is enough to begin to bend legal precedent in favor of industry. Frederick Schauer, who was a First Amendment scholar at Harvard for nearly two decades and is now a professor of law at the University of Virginia School of Law, coined the term “First Amendment opportunism” more than a decade ago to describe precisely this trend. “It used to be that if a lawyer claimed free speech in most of the cases we’re seeing now, the judge would have looked at him and said, ‘Counselor, you can’t be serious,’” Schauer told me. “But now you see them being taken seriously. That’s a very big battle they’ve already won.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">And if industry goes on to win the war—if they collect a body of First Amendment case law establishing that corporations’ First Amendment-protected speech cannot reasonably be fettered by economic regulation—our society will be in a world of hurt. There will be no corporate transparency whatsoever. No way to enforce workers’ rights. No way to compel companies to protect investors or shareholders. And all regulations that require corporate disclosure, including most financial regulations, will cease to exist in any meaningful way.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">And if you don’t believe me, how about the late William Rehnquist? After the Supreme Court first granted that commercial speech considerations can trump state law in the 1970s, the famously conservative Supreme Court justice described a similar vision in his dissent, recalling, with a shudder, the “bygone era of Lochner v. New York.” Named for a case in which the Supreme Court overturned a law limiting the number of hours bakers could be forced to work, the Lochner Era describes a period from the Gilded Age to the Great Depression characterized by unchecked corporate power, untouchable monopolists, very few worker or consumer rights, rampant environmental degradation, and extreme inequality.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">One of the primary reasons those social conditions persisted for so long was because of a fiercely libertarian intellectual culture in many federal courts at the time, and especially the U.S. Supreme Court, which, during a fifty-year period, struck down all or part of more than 200 state and federal laws, including those outlawing child labor, banning sweatshops, and establishing a minimum wage and fair working hours. In the Lochner Era, big industry groups and their allies on the Court wielded the notion of “freedom of contract”—any regulation that abridged it was chucked. Today, the notion of “freedom of speech” is being used virtually the same way, just as Rehnquist worried it might be. Any rule or law that abridges a company’s claims to First Amendment-protected speech is now vulnerable to attack.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Many members of the younger, more radical generation of conservative lawyers and judges now working in the lower federal courts and the U.S. Supreme Court dismiss their conservative forebears’ calls for judicial restraint; Rehnquist’s quaint worries are seen as outmoded by conservative activists today. They instead regard the First Amendment as one of the most powerful weapons in the battle to achieve “economic liberty.” And they are joined in their efforts by a cadre of eminent liberals who, having made their name in the 1970s arguing for the inviolability of the First Amendment under any circumstances, have been unwilling to unpack the flawed logic that got us here to begin with, and are now defending industry’s claims to free speech, lending both credibility and respectability to an argument powerful enough to dismantle the entire regulatory state.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The First Amendment dictates that “Congress shall make no law … abridging the freedom of speech.” It makes no mention of corporations, commercial transactions, or advertising, but nor does it name dissidents, or anarchists, or seditious radicals of any stripe, and for a long time, justices, judges, lawyers, and jurists were more or less in agreement that the First Amendment didn’t protect any of those things. In fact, it wasn’t until about eighty years ago that liberal judges and justices like Oliver Wendell Holmes and Louis Brandeis began, in isolated cases, to use the broad language of “free speech” to protect religious minorities and marginalized groups like Jehovah’s Witnesses and labor rights activists.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Our modern imagination of the First Amendment as a robust, powerful, content-blind doctrine didn’t even really hit the scene until about fifty years ago, in the 1960s and ’70s, when the definition of “speech” began to stretch and morph, becoming both more generous and more distorted in its scope. It was then that liberal Americans and the broader legal establishment began to embrace for the first time the rather radical notion that the First Amendment protects all political speech, regardless of who said it, or what was said. Almost overnight, acts that would have been considered seditious, blasphemous, or profane, and therefore jailable offenses just a generation before, became, by the late ’70s, cultural touchstones, symbols of an age defined by radical individualism. Under the banner of the First Amendment, a teenager could wear a jacket printed with the words “Fuck the Draft”; a man could burn the American flag; the New York Times could print top-secret government records that would help bring down a president.</font></div><div><font size="4" face="Times New Roman">
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</font></div><div><font size="4" face="Times New Roman">By the end of the ’70s, it was written squarely into First Amendment case law that, aside from a handful of exceptions for libel, slander, and hate speech, no government—federal, state, or local—could pass a law that abridged citizens’ political speech, no matter how unpopular or despicable the speaker, no matter how unsavory his message. This idea was sanctified in American lore in 1977, when the American Civil Liberties Union stepped in to defend the Nazis’ First Amendment right to parade through the predominately Jewish streets of Skokie, Illinois.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">That’s generally where our high school textbooks stop. But a less-well-known redefinition of the First Amendment was beginning to appear at the same time. In the early ’70s, intellectual contrarians like Martin Redish, ingenious lawyers working for businesses and corporations, and liberal purists, who distrusted any constraints on any speech, began to promote in legal journals and the occasional lawsuit the idea that companies’ advertisements and marketing campaigns ought to count as “speech,” too. Conservative jurists like Robert Bork dismissed these ideas as wrongheaded and dangerous, writing that “the protection of the First Amendment must be cut off when it reaches the outer limits of political speech.” And for years, most legal experts shared Bork’s view. The notion that commercial entities possessed the ability to “speak,” much less that such “speech” should be afforded constitutional rights, was laughable.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">But again, that changed almost overnight. In 1975, the consumer group Public Citizen, then still controlled by Ralph Nader, sued the state of Virginia over a law restricting pharmacies from advertising the price of their drugs. In that now-famous case, known as Virginia Pharmacy, Public Citizen argued that since consumers could benefit from “hearing” that speech—they could get a better deal by comparing pharmacies’ prices—the government should not be allowed to limit such speech without a “compelling state interest.” It’s important here to note that Public Citizen was arguing that commercial speech is deserving of protection only insofar as it’s valuable to the public. But the Supreme Court’s decision in 1976, in which it sided with Public Citizen and struck down the Virginia law, made a much larger point. It established, first, that a commercial entity can be legally defined as a “speaker” with limited claims to free speech, and second, that even “purely economic” speech, like advertising and marketing, enjoys some First Amendment protections.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Having flown us up to 10,000 feet and opened the hatch, however, the justices forgot to show us how to work the parachutes. “[W]e of course do not hold that [commercial speech] can never be regulated in any way,” wrote Justice Harry Blackmun for the majority. “Some forms of commercial speech regulation are surely permissible.” In other words: commercial entities’ economic speech is protected, but at a lower standard of scrutiny than citizens’ political speech. What, exactly, was that “lower standard of scrutiny”? It was left unsaid.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">While liberals celebrated the decision as a win for consumer rights, conservatives like Rehnquist saw the writing on the wall. “The logical consequences of the Court’s decision in this case, a decision which elevates commercial intercourse … to the same place as had been previously reserved for the free marketplace of ideas, are far reaching indeed,” he wrote in a dissenting opinion.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The years that followed would bear out his warnings as the legal establishment fumbled with the parachute strings. A handful of cases in the 1980s attempted to address the questions that the Supreme Court had left unanswered: What is the definition of commercial speech? What forms of commercial speech regulation are permissible? And under what circumstances can commercial speech be abridged? A tangled and sometimes contradictory “doctrine of commercial speech” emerged, which attempted to set down criteria under which the government can regulate commercial speech—for instance, if the regulation is “narrowly tailored” to address a “substantial” government interest—and under which companies have the right “not to divulge accurate information.” But these criteria and definitions have been Silly Putty in the hands of clever industry lawyers, stretched and molded over the years to fit their needs.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Take, for example, the very definition of “commercial speech.” In the Virginia Pharmacy opinion, Blackmun wrote almost exclusively about advertising and other marketing materials designed for consumers. But in subsequent years, lawyers have stretched that definition, sometimes successfully, to include basically anything whatsoever that involves information—a very, very broad umbrella in today’s information economy—including the act of accessing or transferring digital data. That 2011 Supreme Court decision striking down the Vermont law barring data miners from selling information to pharmaceutical companies hinged on the assumption that the act of purchasing and utilizing digital records to facilitate a marketing strategy fell under the auspices of First Amendment-protected commercial speech. A dismayed Justice Stephen Breyer asked in his dissent why the Court had not given “significant weight to legitimate commercial regulatory objectives,” as precedent demanded. “The far stricter, specially ‘heightened’ First Amendment standards … are out of place here.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In the midst of this intellectual tumult in the mid-’70s, another, even more powerful, idea began to take root. If commercial entities’ economic speech is protected by the First Amendment, but at a lower standard of scrutiny, and citizens’ political speech is protected by the First Amendment, at the highest standard of scrutiny, then what would happen if a commercial entity issued political speech? Would that get the highest standard of scrutiny, too?</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">This question bubbled all the way up to the U.S. Supreme Court in 1978. A few years before, Massachusetts had passed a law barring companies from spending money to sway public referenda, unless their business was directly affected. The First National Bank of Boston sued Massachusetts Attorney General Francis Bellotti, arguing that spending money was a corporations’ form of political speech, and therefore protected by the First Amendment at the highest standard of scrutiny. The Supreme Court agreed: prohibiting corporate spending on political ends indeed violates corporations’ “protected speech in a manner unjustified by a compelling state interest.” The decision threw legal theorists into a tizzy. If the First Amendment treats corporations’ political speech the same way it treats citizens’ political speech, does that make corporations citizens? And if so, do corporations get the same rights as citizens? Justice Lewis Powell, writing for the majority in the Bellotti decision, sidestepped that burning question: it doesn’t matter “whether corporations have First Amendment rights and, if so, whether they are coextensive with those of natural persons,” he wrote. The only question that matters is whether speech “that the First Amendment was meant to protect” is being abridged. In other words, it was all about the speech itself. Political speech, no matter who—or what!—the speaker was, or what was said, enjoys the fullest First Amendment protections, the Court decided.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Three decades later, Justice Anthony Kennedy would cite the Bellotti case as precedent twenty-four times in the Citizens United opinion, claiming that “the Government lacks the power to restrict political speech based on the speaker’s corporate identity.” But at the time, traditional conservatives were appalled by the idea that corporations and other commercial entities would be afforded the same rights as people when it came to political speech. Rehnquist argued that since the government allows corporations to exist by providing them with “special privileges or immunities different from those of natural persons,” it’s only logical that those entities would “be subject to like regulation.” The government, furthermore, allows corporations to exist so that they may perform a circumscribed economic purpose, not so that they can become political participants, he wrote. “[L]iberties of political expression are not at all necessary to effectuate the purposes for which States permit commercial corporations to exist.”</font></div><div><font size="4" face="Times New Roman">
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</font></div><div><font size="4" face="Times New Roman">Yet while traditional conservatives fulminated, a younger generation of conservatives was outright celebratory. Unlike their elders, these more radical conservatives “saw a link between the First Amendment and the larger project of restoring the ‘economic liberty’ that they believed had been eroding since the New Deal,” wrote Columbia law professor Wu. By granting complete, unlimited, inviolable protections to commercial entities’ political speech, Bellotti dramatically elevated the stature of corporations under the First Amendment.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;If liberals insisted on brandishing the First Amendment to protect anarchists and communists, they reasoned, why couldn’t they could use it to protect businesses and restrict government interference in the economy? And that is more or less exactly what they did. Beginning in the early 1970s, a new crop of conservative think tanks, clubs, and legal funds, like the Pacific Legal Foundation, the Heritage Foundation, and what later became the CATO Institute, funded by the Koch brothers, formed alliances with the U.S. Chamber of Commerce and other powerful trade groups, in an effort to push an anti-regulatory, pro-business agenda, with expanded corporate free speech rights as a key weapon.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">This revolution was aided in no small part by many in the liberal establishment, who, even today, continue to support the Bellotti decision on the grounds that it was framed as an anti-discriminatory measure: all political speech by all speakers enjoyed First Amendment protection—even if the speaker was a bank or a corporation. Many of the traditionally liberal First Amendment lawyers, like Floyd Abrams, Laurence Tribe, and Walter Dellinger, who made their names in the ’70s as defenders of the oppressed, have in more recent years dedicated themselves to advancing and defending this idea—that the identity, even the corporate identity, of a speaker cannot be a determining factor of whether or not speech is regulated. As a result, they have, along with organizations like the ACLU, lent their talents, as well their credibility and respectability, to corporations’ First Amendment attacks, often finding themselves among unlikely allies, like the National Rifle Association, Monsanto, and Exxon.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Abrams, for example, who earned his reputation defending the New York Times in the Pentagon Papers case, later wrote the brief in support of Mitch McConnell in Citizens United and, in 2012, successfully argued on behalf of the tobacco industry. In that case, the tobacco industry had claimed that a Food and Drug Administration rule, mandated by the 2009 Family Smoking Prevention and Tobacco Control Act, that required newer, more graphic warning labels on cigarette packaging was a violation of companies’ First Amendment-protected speech. Abrams now represents the massive credit rating agency Standard & Poor’s, which has argued, repeatedly and successfully, that its irresponsible, dangerous, and overly optimistic ratings are just speech—the “world’s shortest editorials,” as one legal scholar put it—and that the company therefore cannot be held responsible for using those ratings to line its own pockets while fleecing investors of billions of dollars and contributing to the collapse of the housing market.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">By the early 2000s, First Amendment jurisprudence had become a vague, messy, and sometimes-contradictory mess, vulnerable to exploitation. On the commercial speech side, it was clear that the First Amendment provided some limited protections to companies, but it wasn’t clear what activities were included under the definition of commercial speech, or where that “lower standard of scrutiny” began or ended. On the political speech side, the Supreme Court had clearly ruled that the First Amendment provided total protection at the “highest standard of scrutiny” to all speakers, including corporations, but it wasn’t clear what speech should be considered political, or what would happen in circumstances in which a company’s political and economic speech overlapped. And in the area of compelled speech—requiring companies to disclose certain information, say, or refrain from making false claims—things were even murkier.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Take, for example, the recent cases brought against the government by Hobby Lobby, a Christian-owned national craft supply chain with 578 stores and tens of thousands of employees across the country. Hobby Lobby argues that the mandate in Obamacare requiring businesses of a certain size to pay for their employees’ contraception violates the company’s First Amendment-protected rights of religious expression. The company’s owners do not believe personally in using certain types of contraception. While that case is slightly different since it involves First Amendment protections of religious expression, rather than speech, much of the same case law applies. In October, the U.S. Court of Appeals in the Tenth Circuit, based in Colorado, cited the First Amendment precedent of Citizens United to decide in favor of Hobby Lobby, leaving its thousands of employees, including those who do not share the religious beliefs of their employers, out of luck. “We see no reason the Supreme Court would recognize constitutional protection for a corporation’s political expression but not its religious expression,” wrote Judge Timothy M. Tymkovich for the majority. The U.S. Supreme Court will hear the case this year.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Or for another example, consider the aftermath of the Citizens United decision in 2010. Perhaps in an effort to quell fears, Justice Kennedy, writing for the majority, noted that while the Court held that laws restricting commercial entities’ expenditures on political messages violated their First Amendment-protected speech, he very pointedly left the door open for Congress to pass laws compelling commercial entities to disclose their expenditures. “Citizens and shareholders” must be able to “make informed decisions and give proper weight to different speakers and messages,” he wrote. It sounded reasonable at the time. After all, if we can’t restrict corporate expenditures, at least we can see how much they’re spending on what, right?</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Not so fast. In the months and years since that decision, corporations and industry groups have been fighting tooth and nail any laws or regulations that would require commercial entities to disclose their political expenditures on the grounds that—drum roll, please!—any such action would infringe on commercial entities’ First Amendment-protected political speech. They argue that such disclosure might subject them to criticism for making the expenditures, which would, in turn, have a “chilling effect” on their ability to spend—er, “speak”—in the future. Just as the government cannot force a citizen to speak or not speak about his political beliefs, they argue, the government cannot force a corporation to disclose its political donations either. Welcome to the NFL.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">It helps to think of the current state of First Amendment jurisprudence the same way you might think of a sci-fi novel. Within its own self-contained universe, organized according to its own laws and assumptions, everything makes logical sense. Kennedy, Abrams, the ACLU, and all the rest of those “purists” make three main assumptions. First, they assume that the information issued by a corporation is “speech” and that the corporation itself should be considered a “speaker.” Second, they assume that all political speech, no matter what is said, enjoys the full protections of the First Amendment. And third, they assume that we cannot discriminate against any political speech regardless of the speaker’s identity. On the basis of those three assumptions, their conclusion is logically inevitable: political speech issued by a corporate speaker enjoys the full protections of the First Amendment.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">But there’s one fatal problem with that little proof: there’s no reason why the first premise—that information issued by a corporation qualifies as “speech”—should pass the test of common sense. As Rehnquist, Bork, and other old-guard conservatives noted decades ago, a corporation is a legal entity that exists because our laws allow it to exist, so that it may perform an economic purpose. It issues information to consumers and the public so that it might advance that economic purpose. That seems like a very, very different thing than a natural person, who is not a legal entity, and exists regardless of the will of the government, speaking about beliefs and convictions. Why not agree that entities that are not alive create information, while only people create speech?</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">It’s at this stage in the conversation that the First Amendment purists, having worked themselves into a bit of a froth, make three points. First, they argue that if we limit the definition of speech or wade into the muck of deciding who gets to be a “speaker” under the law and who does not, then we position ourselves on a slippery slope: we are in danger of creating loopholes that allow the First Amendment to protect one type of speaker but not another. Without total absolutism, wherein all speech, by all speakers is protected, they argue, we risk creating a world in which, say, Muslims are silenced just because they’re Muslims, or anarchists are denied free speech just because they’re anarchists. It is, admittedly, a scary prospect, but in reality, it seems that we are in no danger at all of that actually happening. Would it not be perfectly possible to guarantee, absolutely, free speech rights for every single solitary American—full stop, no exceptions!—without also agreeing to guarantee those rights to corporations? If the line is drawn between people and non-people, that slippery slope seems pretty sticky to me.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The second point the purists raise is what happens when people, who individually enjoy full First Amendment protections, arrange themselves into a group and form legal entities, like corporations, unions, or nonprofits. And the answer, again, seems fairly simple. After all, the government already treats legal entities differently than it treats people. Legal entities are taxed differently, they’re afforded different privileges, and they’re subject to different duties, punishments, and rights. Legal entities cannot be jailed. They cannot plead the Fifth so as not to perjure themselves. They can only be held to limited liability for their financial mistakes. So, in the same way that the law already treats a legal entity differently than it treats a person, so too should it treat the information issued (and cash spent) by a legal entity differently than it treats the speech created (and cash spent) by a person.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The third point the purists make is that since many newspapers and media outlets are corporations, any jurisprudence that does not consider corporations’ speech to be protected by the First Amendment threatens the freedom of the press. Again, that sounds scary, but it seems that there is no reason that must be the case. As Stanford law professor Michael McConnell points out, the First Amendment specifically names the “press” as worthy of its protections, and our laws reflect that, carefully defining and affording protections to editorial activities. “No one disputes that corporations, such as the New York Times Company, can editorialize during an election, and other groups performing the press function have the same right, even if they are not part of the traditional news media industry,” he wrote. But there is no reason to assume that the First Amendment’s press clause should apply to activities, like “campaign contributions, which are not an exercise of the freedom of the press.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">And that, of course, leads to the most important point of all. Shouldn’t our democratically elected governments—local, state, and federal—have the power to police commerce within their jurisdictions? That doesn’t mean that corporations, unions, or nonprofits would be unable to issue commercial or political information. They would simply have to fight, alongside the citizens who benefit from that information, for favorable laws in the political arena, lobbying elected officials and regulators, as they do now. What they wouldn’t be able to do is use the courts, marshalling a supposed constitutional right to circumvent the political process.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Of course, the only way to ensure that these commonsense lines between people and legal entities get redrawn is for political leaders to first understand the threat posed by runaway commercial speech rights, and then to put on the bench judges who do, too—and soon. Legal precedent is powerful and consequential, but it can, as we’ve seen, evolve or devolve over time, depending on who is making the calls.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Obama’s ability to shift the Court has been immeasurably strengthened by the Senate’s decision this past fall to end the filibuster for judicial appointments. He should use that power decisively and quickly. But that’s not the same as moving the Court “to the left,” at least on this issue. Rather, what’s needed are jurists dubious of both liberal First Amendment purism and radical corporate libertarianism. What’s needed are moderate judges willing to admit that when it comes to commercial information, old-guard conservatives like Rehnquist were right, and so too was Justice John Marshall, when he wrote in 1819, “A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">[sadly gorsuch, brett k and moscow mitch ct packing]</font></div><div><font size="4" face="Times New Roman">* rec'd</font></div><div><font size="4" face="Times New Roman"></font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">contrast:</font></div><div><font size="4" face="Times New Roman">
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</font></div><div><font size="4" face="Times New Roman">Exxon Tries To Bury Climate Documents By Claiming First ...</font></div><div><font size="4" face="Times New Roman">
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</font></div><div><font size="4" face="Times New Roman">www.huffingtonpost.com/.../exxon-first-amendment_us_571662c6e4b0060ccda46d6...</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Apr 19, 2016 - Exxon's invocation of the First Amendment is fairly unusual for a ... But others have tried to defend the oil company's free speech rights on this ...</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">First Amendment Freedoms Must Be Protected | The Daily Caller</font></div><div><font size="4" face="Times New Roman">
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</font></div><div><font size="4" face="Times New Roman">dailycaller.com/.../texas-is-fighting-back-against-the-activist-ags-dangerous-climate-su...</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Jun 2, 2016 - A view of the Exxon Mobil refinery in Baytown, Texas, in this ... Texas AG's Decision To Fight In Favor Of ExxonMobile's Constitutional Rights?</font></div><div><font size="4" face="Times New Roman">
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</font></div><div><font size="4" face="Times New Roman">https://dailycaller.com/2016/06/02/texas-is-fighting-back-against-the-activist-ags-dangerous-climate-subpoena/</font></div><div><font size="4" face="Times New Roman">
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</font></div><div><font size="4" face="Times New Roman">Ken PAXTON</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">TEXAS ATTORNEY GENERAL</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">June 02, 2016</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">While the debate over climate change has been, at times, contentious and even mean-spirited, it’s never been criminalized.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Until now.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Recently, Claude Earl Walker, the attorney general for the U.S. Virgin Islands, issued a criminal subpoena to ExxonMobil in Texas. What crime are they investigating? Thoughts. Walker is investigating Exxon’s expressed doubts on the issue of climate change and those who they communicated with about this questionable subject.&nbsp;&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Now, anyone who has expressed such thoughts has increasingly found themselves under vocal assault from politicians, federal funding agencies, universities, professional societies, and journalists. But this may be the most shocking assault yet. A government official is actually using his prosecutorial power to attack a company for nothing more than expressing an opinion that’s unpopular with the environmental left.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">That is why my office and the Alabama Attorney General have joined ExxonMobil in an effort to have this abusive and unconstitutional subpoena thrown out of court.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">This is the strongest demonstration yet of the almost-religious zeal with which climate change proponents attack those with whom they disagree, and how little the First Amendment freedoms mean to people with such an agenda. During a press conference announcing the investigation, Walker – along with a coalition of other environmentally activist AGs – said that his office has launched an investigation into a company whose “product is destroying the earth.”&nbsp;&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Those words reveal the true motive behind this effort. Walker and the environmental activists he is beholden to are not neutral parties investigating possible wrongdoing. They are zealots on the hunt for a trophy.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Today, Walker is targeting ExxonMobil. But the coalition of activist Attorneys General that are operating alongside him suggests that the campaign for absolute orthodoxy on climate change could go national at any time, and who knows who could be next.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Unlike being criticized in the media or on college campuses, this isn’t merely an unfair annoyance. Companies being targeted will have to spend substantial financial resources to defend themselves, which serves as a massive de facto “fine” before any wrongdoing is even demonstrated. And that’s money that could otherwise go toward paying higher wages, hiring more employees, and investing more in the company.&nbsp;&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In the subpoena, Walker demands four decades worth of ExxonMobil records, which is the very definition of a massive fishing expedition. They’re hoping to bring in as much information as possible so they can pore over it later in the hopes of finding somebody at ExxonMobil who did something wrong at some point in the company’s history — perhaps as far back as the Ford Administration.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Walker has floated a “theory” that the company’s speech somehow amounted to a criminal racketeering violation. In reality, this is an obvious attempt to criminalize views on one side of a debate, in flagrant disregard of the First Amendment.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Once we cross the line into prosecuting people for what they believe, we will have abandoned one of America’s founding principles. Our First Amendment freedoms must be protected.&nbsp;</font></div><div><font size="4" face="Times New Roman">
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</font></div><div><font size="4" face="Times New Roman">=</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Does Exxon Have a Constitutional Right to Deny Climate Change ...</font></div><div><font size="4" face="Times New Roman">https://www.motherjones.com/environment/2016/.../exxon-ken-paxton-first-amendme...</font></div><div><font size="4" face="Times New Roman">Jun 30, 2016 - Texas Attorney General Ken Paxton took Exxon's side in the company's ... In March, US Virgin Islands Attorney General Claude Walker served the ... The brief was also signed by Alabama Attorney General Luther Strange (R).</font></div><div><font size="4" face="Times New Roman"></font></div><div><font size="4" face="Times New Roman">https://www.rightwingwatch.org/post/the-constitution-gives-david-barton-more-protection-than-the-rest-of-you/</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Earlier this month, Religious Right pseudo-historian David Barton asserted on his “WallBuilders Live” radio program that “religious folks” are entitled to “more protection” under the First Amendment than everyone else.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Barton was praising recent Supreme Court rulings having to do with the issues of religious liberty and expression, such as the Bladensburg cross case, and hailed the Court for supposedly recognizing that the Founding Father intended for religious citizens to be granted “added, special protection” under the Constitution … three times more protection, to be exact.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“Secular speech is protected by the Constitution,” Barton said, “but religious speech has several protections in the First Amendment.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Barton said that while everyone has a right to free speech, religious speech and expression are “protected by three clauses,” which means that his speech is entitled to “more protection, if you will, than just normal, secular speech.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">He insisted that the idea that secular speech or expression should receive the same protections as religious speech or expression is unconstitutional because “that’s not what the First Amendment gave me.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“It gave me more protection because I get my speech but if it’s religious, I get it twice, and if it is religious with others, I get it three times,” Barton claimed. “In addition to free speech, there is also free exercise of religion, which often involves free speech. For me to exercise my faith means I will speak about it, I will live it out, I will activate it, I will do it. And, by the way, I have the right to assembly, so I can get together with other believers and we can act out our faith … While religious folks have at least three different forms of protection under the First Amendment for their speech, secular folks have their protections as well for speech and assembly, but they just don’t have the same religious motivations.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">When Barton’s son, Tim, tried to clarify that all citizens “have the exact same protections that a religious person does,” Barton disputed that assessment.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“You actually get added protection because it singles out your religious expression,” he said, “That’s a level of protection the Founding Fathers wanted to make sure that religious folks had, so they singled that out to give, if you will, added protection if you’re a religious folk … The First Amendment says, ‘Hey, religion is so vitally important that you get added, special protection.’”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">=</font></div><div><font size="4" face="Times New Roman"></font></div><div><font size="4" face="Times New Roman">https://www.cnbc.com/2019/07/08/us-judge-halts-trump-hhs-rule-requiring-drug-prices-in-tv-ads.html</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">...A federal judge on Monday blocked the Trump administration from implementing a new rule that would force pharmaceutical companies to include the wholesale prices of their drugs in television advertising.</font></div><div><font size="4" face="Times New Roman">U.S. District Judge Amit Mehta in Washington, D.C., sided with drugmakers Merck & Co, Eli Lilly and Co and Amgen by halting the U.S. Department of Health and Human Services rule from taking effect on Tuesday as planned HS Secretary Alex Azar announced the rule on May 8, saying that forcing drugmakers to disclose their prices in direct-to-consumer TV advertising could help drive down skyrocketing prescription drug costs if the companies were embarrassed by them or afraid they would scare away customers.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The rule was originally suggested last May as part of U.S. President Donald Trump’s “blueprint” to lower prescription drug costs for U.S. consumers....</font></div><div><font size="4" face="Times New Roman">
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</font></div><div><font size="4" face="Times New Roman">am pro</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">July 10, 2019 by Susie Fagan</font></div><div><font size="4" face="Times New Roman">A Trump administration-backed rule requiring pharmaceutical companies to disclose drug prices in TV ads was blocked in federal court. Among the arguments was drug companies’ claim that the rule would violate their First Amendment rights.&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">A new rule to require pharmaceutical companies to publish drug prices in their television advertising was blocked by a federal court a day before it was to take effect. President Donald Trump’s administration pushed for the rule as part of its effort to reduce prescription drug prices for U.S. consumers.&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Three drugmakers—Merck, Eli Lilly and Amgen—filed the legal challenge along with the advertising trade group the Association of National Advertisers, arguing that the rule:</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Went beyond the authority of the U.S. Department of Health and Human Services because Congress did not authorize the requirement.</font></div><div><font size="4" face="Times New Roman">Would confuse consumers by forcing them to disclose a price irrelevant to patients with insurance.</font></div><div><font size="4" face="Times New Roman">Violated their free speech rights under the First Amendment of the U.S. Constitution.</font></div><div><font size="4" face="Times New Roman">That last argument leans on the U.S. Supreme Court ruling in the 2010 Citizens United v. FEC case. In that 5-4 decision, the court lifted restrictions on corporate political spending, calling the restrictions violations of corporations’ 1st Amendment free speech rights, enshrining constitutional rights for corporations and unleashing a wave of political spending from Super PACs and other outside groups.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">A Hot Topic in Congress</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">A federal judge this week blocked a White House initiative on prescription drug costs, saying the Trump administration lacked the legal authority to require drugmakers to disclose their prices in television ads.</font></div><div><font size="4" face="Times New Roman">The rule, which would have required ads for any medicine with a list price over $35 a month to disclose the cost during the commercial, is just one of several recent attempts on both sides of the aisle to rein in drug prices.&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Nearly a quarter of Americans say they have trouble affording the cost of their prescription drugs, according to a recent Kaiser Family Foundation poll, and nearly a third say they don’t take their medicines as prescribed because of high costs. A cross-partisan majority of Americans say drug companies should have to list prices in their ads, as proposed by the Trump administration and advocated for by consumer rights groups, and that regulations should be changed to speed access to generic drugs.&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Drug prices are a hot topic during this session of Congress, with notable bipartisan support—yet initial efforts have stalled in the face of pharmaceutical industry lobbying, according to the Center for Responsive Politics. Lawmakers are considering several pieces of legislation designed to limit rising costs:&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The Affordable Prescriptions for Patients Act, introduced by Sens. John Cornyn (R-Texas) and Richard Blumenthal (D-Conn.), would classify certain patent practices as anticompetitive, making it easier for the Federal Trade Commission to bring lawsuits against drug companies that try to block generic alternatives. After backlash from the pharmaceutical industry, the bill is undergoing changes in what is being called “a major victory” for the drug industry.&nbsp;</font></div><div><font size="4" face="Times New Roman">In late May, Sens. Lamar Alexander (R-Tenn.) and Patty Murray (D-Wash.) introduced a more comprehensive bill that targets drug prices as well as other health care issues such as surprise billing.</font></div><div><font size="4" face="Times New Roman">In June, Reps. Hakeem Jeffries (D-N.Y.), Debbie Mucarsel-Powell (D-Fla.), Doug Collins (R-Ga.) and Ben Cline (R-Va.) introduced a bill that seeks to allow for more generic drugs by increasing the burden of proof for companies seeking additional patents on an existing medication.&nbsp;</font></div><div><font size="4" face="Times New Roman">The pharmaceutical industry has long ranked among the top industries for campaign donations, with the three drug companies that filed the lawsuit among among the industry’s top four political contributors for the 2017-2018 campaign cycle.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Overcoming Big Money</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In ruling that corporate political spending was protected free speech in Citizens United, the Supreme Court based its decision on the assertion that corporations deserve these constitutional protections because they are assemblies of people. However, corporations typically don’t represent the opinions of all of the people who comprise them—and most Americans agree that corporations are not people.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The 28th Amendment will affirm the rights of people in our government—rather than corporations, unions, special interest groups and other big-money influences—by addressing reforms to political spending and other issues, including corporate rights, gerrymandering and term limits for Congress.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Through a constitutional amendment, Americans can strengthen our elections, prevent corruption, and ensure equal representation and political equality.</font></div><div><font size="4" face="Times New Roman">
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</font></div><div><font size="4" face="Times New Roman"></font></div><div><font size="4" face="Times New Roman">AN 619</font></div><div><font size="4" face="Times New Roman"></font></div><div><font size="4" face="Times New Roman">Kansas City Star editorial board blasts Missouri Republican for bill aimed at big tech companies: ‘A dangerous assault on the First Amendment’</font></div><div><font size="4" face="Times New Roman">by Alex Henderson June 20, 2019</font></div><div><font size="4" face="Times New Roman">Republican Sen. Josh Hawley is drawing criticism from both the left and the right for a bill they are stressing would reduce First Amendment protections for large tech companies. And…</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">=</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman"></font></div><div><font size="4" face="Times New Roman">dn 619</font></div><div><font size="4" face="Times New Roman">SCOTUS Rules Public Access Station Not Bound by 1st Amendment</font></div><div><font size="4" face="Times New Roman"></font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman"></font></div><div><font size="4" face="Times New Roman">https://www.climateliabilitynews.org/2018/01/16/exxon-continues-first-amendment-defense-climate-fraud-probes/</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;Karen Savage</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Exxon continues to cry foul, alleging that two state attorneys general are violating its First Amendment right to express its&nbsp; opinion on climate change.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In a brief filed last week in New York, attorneys for Exxon once again asserted that that investigations by Massachusetts Attorney General Maura Healey and New York Attorney Eric Schneiderman are part of a politically motivated conspiracy against the company and an attempt to silence the oil giant through intimidation.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The filing was the latest effort by Exxon to thwart investigations by the attorneys general into possible climate change-related deception by the company. It follows a filing by the AGs in December urging a dismissal of Exxon’s suit against them, based on the company’s recent announcement that it would begin considering climate risks on its business in disclosures to its stockholders. Healey and Schneiderman contend that announcement equates to an admission that Exxon has not been forthcoming about those risks as the AGs have alleged.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">But Exxon continues to insist that the investigations are an abuse of Healey’s and Schneiderman’s political positions and are violations of the oil giant’s First, Fourth and Fourteenth amendment rights.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In November, New York U.S. District Court Judge Valerie Caproni ordered each side to submit written arguments in the case, which was first filed by Exxon in the U.S. District Court for the Northern District of Texas in June 2016, but has since been transferred to New York.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In its most recent brief, attorneys for Exxon said the attorneys general are targeting Exxon with “burdensome” and “harassing” investigations because of the company’s views on climate change. Attorneys also link Healey and Schneiderman to climate activists who Exxon says are seeking to “harass perceived political opponents” and “delegitimize” Exxon.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Attorneys for Healey call Exxon’s allegations absurd, particularly considering Exxon has taken the public stance of supporting the overwhelming scientific consensus on climate change.&nbsp;&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“Exxon asserts that Attorney General Healey has joined in an illegal conspiracy to violate Exxon’s rights because she does not agree with Exxon’s views about climate change. Yet Exxon also states that it now endorses climate science, the existence of climate change, and efforts to combat it—consistent with Attorney Healey’s position,” Healey’s attorneys wrote in a recent brief.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Schneiderman’s attorneys said that for Exxon to prevail on a free speech allegation, it must plead and prove its right to free speech has been violated, something they contend Exxon has not done.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">They point to Exxon’s own court filings, in which the company said it speaks publicly about the risks of climate change and shares its perspective on climate change on the company’s website.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In a website posting last week, Exxon denounced a recent climate change-related lawsuit filed against it by New York City and reiterated its climate change perspective. A video shared on the company’s Twitter page carried a similar message.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“These public statements demonstrate that, far from being muzzled, Exxon regularly engages in corporate advocacy concerning climate change,” wrote attorneys for Schneiderman, adding that a state investigation is not a violation of Exxon’s constitutionally protected rights.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Schneiderman also said that fraudulent statements are not protected by the First Amendment.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Exxon fired back, alleging that not only are its statements protected but also the company has been harmed by having to endure the “burden and expense” of the investigations.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“Based on the record before this Court, there is no basis to classify ExxonMobil’s speech on climate change and climate policy as anything but fully protected by the First Amendment,” wrote attorneys for Exxon.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">But attorneys for Healey said Exxon’s recent filing with the Securities and Exchange Commission that promised climate risk disclosure raises further questions about the company’s truthfulness.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">That decision came after 62 percent of Exxon shareholders voted in favor of requiring the company to produce a report outlining financial risks to the company from global efforts to prevent temperatures from rising more than 2 degrees Celcius.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“This filing makes clear that, at a minimum, Exxon’s prior disclosures to investors, including Massachusetts investors, may not have adequately accounted for the effect of climate change on its business and assets,” attorneys for Healey wrote.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Exxon Will Continue to Fight Climate Probes by State Attorneys General</font></div><div><font size="4" face="Times New Roman">Exxon's First Amendment Claims in Climate Fraud Case Draw Judge's Skepticism</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Federal Judge Dismisses Exxon Lawsuit Challenging State Climate Probes</font></div><div><font size="4" face="Times New Roman">
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</font></div><div><font size="4" face="Times New Roman">no lnx</font></div><div><font size="4" face="Times New Roman">
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</font></div><div><font size="4" face="Times New Roman">ref filing</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">https://www.documentcloud.org/documents/4349504-Exxon-Response-Jan-12-2018.html</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">UNITED STATES DISTRICT COURT</font></div><div><font size="4" face="Times New Roman">SOUTHERN DISTRICT OF NEW YORK</font></div><div><font size="4" face="Times New Roman">EXXON MOBIL CORPORATION,</font></div><div><font size="4" face="Times New Roman">Plaintiff,</font></div><div><font size="4" face="Times New Roman">No. 17-CV-2301 (VEC) (SN)</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">v.</font></div><div><font size="4" face="Times New Roman">ERIC TRADD SCHNEIDERMAN, Attorney</font></div><div><font size="4" face="Times New Roman">General of New York, in his official capacity, and</font></div><div><font size="4" face="Times New Roman">MAURA TRACY HEALEY, Attorney General of</font></div><div><font size="4" face="Times New Roman">Massachusetts, in her official capacity,</font></div><div><font size="4" face="Times New Roman">Defendants.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">EXXON MOBIL CORPORATION’S OPPOSITION TO DEFENDANTS’</font></div><div><font size="4" face="Times New Roman">MOTIONS TO DISMISS THE AMENDED COMPLAINT UNDER RULE 12(B)(6)</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">PAUL, WEISS, RIFKIND,</font></div><div><font size="4" face="Times New Roman">WHARTON & GARRISON LLP</font></div><div><font size="4" face="Times New Roman">1285 Avenue of the Americas</font></div><div><font size="4" face="Times New Roman">New York, NY 10019-6064</font></div><div><font size="4" face="Times New Roman">HAYNES & BOONE, LLP</font></div><div><font size="4" face="Times New Roman">2323 Victory Avenue, Suite 700</font></div><div><font size="4" face="Times New Roman">Dallas, TX 75219</font></div><div><font size="4" face="Times New Roman">Tel: (214) 651-5579</font></div><div><font size="4" face="Times New Roman">CANTEY HANGER LLP</font></div><div><font size="4" face="Times New Roman">600 W. 6th St. #300</font></div><div><font size="4" face="Times New Roman">Fort Worth, TX 76102</font></div><div><font size="4" face="Times New Roman">Tel: (817) 877-2800</font></div><div><font size="4" face="Times New Roman">Counsel for Exxon Mobil Corporation</font></div><div><font size="4" face="Times New Roman">...PRELIMINARY STATEMENT</font></div><div><font size="4" face="Times New Roman">The Attorneys General of New York and Massachusetts (the “Attorneys General”) ask</font></div><div><font size="4" face="Times New Roman">this Court to abdicate its duty to protect constitutional rights from overreaching state power. In</font></div><div><font size="4" face="Times New Roman">their telling, it is “speculative” and “implausible” for a plaintiff to allege that public officials</font></div><div><font size="4" face="Times New Roman">took adverse action against ExxonMobil because they disagreed with the viewpoint expressed in</font></div><div><font size="4" face="Times New Roman">the Company’s speech.&nbsp;</font></div><div><font size="4" face="Times New Roman">The Federal Reporter abounds with decisions holding precisely the</font></div><div><font size="4" face="Times New Roman">opposite. Consistent with that precedent, ExxonMobil has alleged that the Attorneys General,</font></div><div><font size="4" face="Times New Roman">acting individually and as members of an unlawful conspiracy, determined that certain speech</font></div><div><font size="4" face="Times New Roman">about climate change presented a barrier to their policy objectives, identified ExxonMobil as one</font></div><div><font size="4" face="Times New Roman">source of that speech, launched investigations based on the thinnest of pretexts to impose costs</font></div><div><font size="4" face="Times New Roman">and burdens on ExxonMobil for having spoken, and hoped their official actions would shift</font></div><div><font size="4" face="Times New Roman">public discourse about climate policy. Each of those specific, concrete factual allegations is</font></div><div><font size="4" face="Times New Roman">supported by statements and documents in the public record. A plaintiff in federal court is not</font></div><div><font size="4" face="Times New Roman">required to do more at the pleading stage.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Faced with a pleading standard that ExxonMobil has easily satisfied, the Attorneys</font></div><div><font size="4" face="Times New Roman">General urge this Court to apply a heightened standard of review unsupported by rule or</font></div><div><font size="4" face="Times New Roman">precedent. It would be improper to do so. While the Attorneys General claim that their motives</font></div><div><font size="4" face="Times New Roman">are pure and their actions justified, those assertions are entitled to no weight at this point in the</font></div><div><font size="4" face="Times New Roman">proceedings. Were it otherwise, no action against state officials would ever proceed beyond the</font></div><div><font size="4" face="Times New Roman">pleading stage. The Attorneys General also ask this Court to conduct fact-finding and draw</font></div><div><font size="4" face="Times New Roman">inferences in their favor, but fact-finding at the motion to dismiss stage would be inappropriate</font></div><div><font size="4" face="Times New Roman">(particularly, as here, in the absence of discovery) and all inferences must be drawn in favor of</font></div><div><font size="4" face="Times New Roman">the plaintiff, ExxonMobil. In another futile gambit, the Attorneys General present arguments</font></div><div><font size="4" face="Times New Roman"></font></div><div><font size="4" face="Times New Roman">
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</font></div><div><font size="4" face="Times New Roman">http://www.pfaw.org/blog-posts/confirmed-judges-confirmed-fears-trump-circuit-judge-tries-to-strike-down-lobbyist-registration-and-disclosure-law-as-applied-to-unpaid-lobbyist-on-free-speech-grounds/?utm_medium=email&utm_source=nl&utm_campaign=december2018</font></div><div><font size="4" face="Times New Roman">
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</font></div><div><font size="4" face="Times New Roman">"Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties.&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Trump Eighth Circuit Judge David Stras dissented from an opinion by two other Republican-appointed judges in late November and argued that Missouri’s lobbyist registration and disclosure law violated the First Amendment as applied to an unpaid conservative lobbyist. The majority strongly disagreed with Stras’ attempt to expand the reach of decisions like Citizens United and explained that the state’s interest in transparency and public disclosure of who is trying to influence legislation clearly warranted the minimal burdens imposed by the law.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Ronald Calzone is the president, director, and unpaid lobbyist for Missouri First, a conservative nonprofit organization that regularly lobbies members of the state legislature. He filed a First Amendment challenge to the Missouri lobbying registration and disclosure law. The law simply requires filling out a form and paying a $10 fee once each year, as well as filing additional reports concerning lobbying-related expenditures. The district court rejected his claim that the law was unconstitutional as applied to him as an unpaid lobbyist, and he appealed.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In Calzone v. Summers, Judges Steven Colloton and Bobby Shepherd, both appointed by President George W. Bush, affirmed the lower court decision, but Judge Stras dissented. The majority explained that it was improper to consider Calzone’s additional argument that he makes no lobbying-related expenditures, as Judge Stras did in dissent, because that argument had not been raised below or even in the court of appeals until oral argument, noting that Stras’ view to the contrary was “unfair” to the lower court and to the state. All three judges agreed that Citizens United required “exacting scrutiny” of the law as applied to Calzone, but Stras claimed that the state’s interest in “transparency” was not enough.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The majority strongly disagreed, explaining that based on precedent, there was a strong interest in disclosure of who is “pressuring and attempting to influence legislators.” They also noted that even unpaid lobbyists could offer “things of value” to legislators, raising the state interest in “avoiding the fact or appearance of public corruption.” The burden of complying with the law was “minimal,” they stated, particularly if Calzone did not make lobbying-related expenditures as he claimed in the court of appeals.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Overall, the majority concluded, the state system was “precisely that which we have previously held would satisfy” the requirement that such a disclosure law have a “substantial relationship” to the state’s interests. Stras’ dissent, on the other hand, would have further extended efforts in Citizens United and similar cases to misuse the First Amendment to undermine important public disclosure laws.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Tags: Confirmed Judges Confirmed FearsDavid StrasFighting Big Money in Politicslobbyingmoney in politics</font></div><div><font size="4" face="Times New Roman"></font></div><div><font size="4" face="Times New Roman">
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</font></div><div><font size="4" face="Times New Roman">https://grist.org/article/exxon-says-climate-lawsuits-violate-its-right-to-free-speech-seriously/</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Exxon says climate lawsuits violate its right to free speech. Seriously.</font></div><div><font size="4" face="Times New Roman">By Zoya Teirstein on Jun 19, 2018</font></div><div><font size="4" face="Times New Roman">Just a short time ago, it seemed like Exxon might finally be forced to reckon with the harm it had inflicted through the digging up, selling, and burning of fossil fuels.</font></div><div><font size="4" face="Times New Roman">A wave of cities led by San Francisco and Oakland filed suit against Exxon and other major polluters last year, alleging that the companies had purposefully misled the public about the effects of climate change in order to keep profits high. In March, a federal judge handed the California cities a small win: the chance to publicly debate polluters in court about their role in denying climate science.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">But if we’ve learned anything from the way the tobacco industry rapidly went on the offensive when it was accused of peddling cancer sticks, it’s that getting industry to fess up to its wrongdoings is easier said than done. And Exxon, it seems, will do anything to shift the blame from its own shoulders, even if that means spinning an entirely new narrative around who the real victim is.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">After the California cities filed suit, Exxon brought a petition before the Texas 2nd Circuit Court of Appeals claiming the lawsuits were part of a conspiracy intended to waylay the company’s right to free speech and force it to change its position on climate change. Yes, you read that correctly. Exxon argued that the cities were trying to make the company agree to a number of truths about climate change, which, in effect, violated Exxon’s First Amendment rights to say whatever the hell it wants about climate change.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Yeah, sounds crazy! But the Texas judge, R.H. Wallace Jr., bought the argument and handed Exxon a victory in April. That means the company can now grill California city officials about whether the climate suits, from the Bay to New York City, have been one big conspiracy to violate the company’s right to free speech.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Michael Burger, Executive Director of Columbia University’s Sabin Center for Climate Change Law, doesn’t think Exxon’s free speech argument holds up under scrutiny. Exxon already tried a similar tactic in a New York court. Former Attorney General Eric Schneiderman, who recently resigned after four women accused him of sexual assault, started investigating the company over climate change in 2015. Exxon’s lawyers argued Schneiderman tried to “silence and intimidate one side of the public policy debate on how to address climate change” by launching the probe.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The New York judge dismissed the case this year. When Exxon tried to edit, or “amend,” its original complaint, the judge denied the amendment “as futile,” which is a fancy way of saying the judge kicked Exxon in the gnads. The fact that Exxon already tried and failed to invoke its First Amendment rights doesn’t bode well for the company’s latest attempt in California. “The idea that these lawsuits could infringe on First Amendment rights is, as the judge in New York said, implausible,” Burger says.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">So, while the Texas judge gave Exxon a small window of opportunity to question California officials about the alleged “conspiracy,” Burger says that doesn’t mean it’ll turn into a full-blown court case. California has already appealed Judge Wallace Jr.’s decision.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The First Amendment claim isn’t an entirely new invention — big companies have asserted such claims before, says Peter Lehner, former chief of the Environmental Protection Bureau of the New York State Attorney General’s office. But Exxon’s argument that the climate lawsuits are a big conspiracy, he says, is based on “flimsy ground.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">First of all, attorneys general communicate with each other often. And second of all, he says, “If the company is lying to their shareholders and to their consumers, then that is fraud.” It all comes back to the underlying issue: If California can prove Exxon knew about climate change and lied to the public about it, the company probably won’t be able to get out of an investigation by crying free speech. Why? Because the First Amendment doesn’t protect liars!</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">As for why Exxon might be pulling out the flawed free speech argument again, Burger raises one possibility: “It may well be that Exxon is threatening to bring a lawsuit in an effort to intimidate those [California] officials or enact some form of retribution.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">A major oil company acting like a huge bully? Nah, doesn’t sound like good ol’ Exxon. Psyche!</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">BUT NOTE CTR-SUIT ON CITY FRAUD?!</font></div><div><font size="4" face="Times New Roman">=</font></div><div><font size="4" face="Times New Roman">Exxon says climate lawsuits violate its right to free speech. Seriously ...</font></div><div><font size="4" face="Times New Roman">https://grist.org/.../exxon-says-climate-lawsuits-violate-its-right-to-free-speech-seriousl...</font></div><div><font size="4" face="Times New Roman">Jun 19, 2018 - “The idea that these lawsuits could infringe on First Amendment ... If California can proveExxon knew about climate change and lied to the ...</font></div><div><font size="4" face="Times New Roman">Missing: 1st ?| ?Must include: ?</font></div><div><font size="4" face="Times New Roman">1st</font></div><div><font size="4" face="Times New Roman">Donald Trump Thinks the First Amendment Protects Deliberate Lies ...</font></div><div><font size="4" face="Times New Roman">https://www.theatlantic.com/politics/archive/2016/...first-amendment...lies/496004/</font></div><div><font size="4" face="Times New Roman">Aug 16, 2016 - Does the First Amendment Protect Deliberate Lies? ... The idea that lies are part of “freedom of speech” or “of the press” seems wrong.</font></div><div><font size="4" face="Times New Roman">Missing: exxon ?| ?Must include: ?</font></div><div><font size="4" face="Times New Roman">exxon</font></div><div><font size="4" face="Times New Roman">Did Exxon lie to its investors as well as the public? - Los Angeles Times</font></div><div><font size="4" face="Times New Roman">www.latimes.com/opinion/op-ed/la-oe-mckibben-exxon-proxy-20170608-story.html</font></div><div><font size="4" face="Times New Roman">Jun 8, 2017 - Former Exxon president and current Secretary of State Rex Tillerson on June 2, at the ... the Empire State's attorney general, laid out the first real fruits of his ... But telling that kind of lie may be protected by the 1st Amendment; ...</font></div><div><font size="4" face="Times New Roman">Does the First Amendment Protect Lying?</font></div><div><font size="4" face="Times New Roman">law2.umkc.edu/faculty/projects/ftrials/conlaw/lying.html</font></div><div><font size="4" face="Times New Roman">In New York Times v Sullivan (1964), the Court extended First Amendment protection to false statements of fact in a defamation suit. The Court held such ...</font></div><div><font size="4" face="Times New Roman">Missing: exxon ?| ?Must include: ?</font></div><div><font size="4" face="Times New Roman">exxon</font></div><div><font size="4" face="Times New Roman">Dem Congressmen: First Amendment Doesn't Protect Global Warming ...</font></div><div><font size="4" face="Times New Roman">https://dailycaller.com/.../dem-congressmen-first-amendment-doesnt-protect-global-w...</font></div><div><font size="4" face="Times New Roman">Jun 13, 2016 - Nineteen Democratic lawmakers told Harris her “investigation as to whether ExxonMobil lied about the truth of climate change and misled ...</font></div><div><font size="4" face="Times New Roman">Exxon Tries To Bury Climate Documents By Claiming First ...</font></div><div><font size="4" face="Times New Roman">https://www.huffingtonpost.com/.../exxon-first-amendment_us_571662c6e4b0060ccd...</font></div><div><font size="4" face="Times New Roman">Apr 19, 2016 - ExxonMobil is fighting a subpoena seeking its internal documents on climate ... Exxon'sinvocation of the First Amendment is fairly unusual for a ...</font></div><div><font size="4" face="Times New Roman">Missing: 1st ?lie</font></div><div><font size="4" face="Times New Roman">How Corporations Hijacked the First Amendment to Evade Regulation ...</font></div><div><font size="4" face="Times New Roman">https://newrepublic.com/.../how-corporations-hijacked-first-amendment-evade-regulat...</font></div><div><font size="4" face="Times New Roman">Jun 2, 2013 - But when it comes to the First Amendment, we live in interesting times. ... Last summer, the tobacco industry used the First Amendment to have ..... Every time that strategy succeeds, the under- lying debate is placed beyond ...</font></div><div><font size="4" face="Times New Roman">=</font></div><div><font size="4" face="Times New Roman">trump blocks ppl on twitter:</font></div><div><font size="4" face="Times New Roman">=</font></div><div><font size="4" face="Times New Roman">wtf mccutcheon</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">https://knightcolumbia.org/sites/default/files/content/CRF_amicus_Knight_v_Trump.pdf</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">http://www.coolidgereagan.org/crf-amici-kfai-v-trump</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Knight First Amendment Institute at Columbia University,</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Rebecca Buckwalter, Phillip Cohen, Holly Figueroa, Eugene Gu,Brandon Neely, Joseph Papp, and Nicholas Pappas,Plaintiffs-Appellees,&nbsp; v. Donald J. Trump, President of the United States, and Daniel Scavino, White House Director of Social Media and Assistant to the President,Defendants-Appellants.On Appeal from the U.S. District Courtfor the Southern District of New YorkBRIEF OF AMICUS COOLIDGE-REAGAN FOUNDATION IN SUPPORT OF DEFENDANTS-APPELLANTS___Dan BackerPOLITICAL.LAW PLLC</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">441 N. Lee Street, Suite 300 Alexandria, VA 22314 (202) 210-5431 dan@political.lawCounsel for Amicus Coolidge- Reagan Foundation*Application for admission pending</font></div><div><font size="4" face="Times New Roman">...</font></div><div><font size="4" face="Times New Roman">CORPORATE DISCLOSURE STATEMENT Amicus Coolidge-Reagan Foundation has no parent corporation, and no publicly held corporation owns 10% or more of its stock.</font></div><div><font size="4" face="Times New Roman">...</font></div><div><font size="4" face="Times New Roman">CRF presents this brief because it believes the district court has misconstrued the First Amendment in this case, and its ruling could have problematic consequences for other areas of law. CRF’s President, undersigned counsel Dan Backer, has authorized it to file this brief. ARGUMENT I. THE DISTRICT COURT SHOULD NOT HAVE ADJUDICATED THE KNIGHT FIRST AMENDMENT INSTITUTE’S CLAIMS The district court erred by adjudicating the Institute’s claims because the Institute lacked standing to complain of the President’s decision to block the individual, non-institutional plaintiffs (hereafter, “Blocked Users”) from Twitter. Moreover, the district court’s ruling in favor of the Blocked Users mooted the Institute’s claims, resolving its Article III case or controversy against the Government. Finally, given the tremendously different legal consequences between</font></div><div><font size="4" face="Times New Roman">...&nbsp;</font></div><div><font size="4" face="Times New Roman">=</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman"></font></div><div><font size="4" face="Times New Roman">common scam/distortion:</font></div><div><font size="4" face="Times New Roman">
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</font></div><div><font size="4" face="Times New Roman">avuncular happy warrior often on pbs newshour</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">https://www.alternet.org/trump-backer-rants-about-his-first-amendment-rights-after-host-accuses-him-using-fancy-rhetorical</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">CNN’s Alisyn Camerota on Wednesday battled conservative Matt Schlapp over the legal implications of Donald Trump’s former personal lawyer and onetime campaign chairman both landing on the wrong side of the law, after Michael Cohen struck a plea deal with the Southern District of New York on the same day Paul Manafort was convicted of eight counts in the Eastern District of Virginia.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Asked if Cohen’s plea deal impacts his support of Trump, Schlapp insisted the only thing made clear by the deal is that the president’s personal attorney, like Manafort, “had an elaborate scheme to not pay their taxes and committed a lot of financial crimes and in Cohen's case, because they had him over a barrel.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“I believe what happened is Michael Cohen pled to charges that are actually not crimes according to the FEC but that are an attempt to try to do anything to connect Cohen's wrongdoing to potential wrongdoing by Trump, and I think it’s a travesty,” Schlapp argued.&nbsp; “I don't believe that the transactions associated with these two people are FEC crimes and I believe that Michael Cohen pled guilty to crimes in the plea deal that aren't in fact crimes,” he later said.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“What I think you're doing is a lot of fancy rhetorical footwork,” Camerota replied.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“I'm answering your question,” Schlapp shot back.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“My question to you was does at all affect your support of Donald Trump knowing these things?”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Schlapp rehashed the conservative talking point that he knew “Donald Trump had an extravagant life-style” and “nobody in my party or nobody of the folks that made up the Trump coalition were naive to the fact of the life he had.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“So you were okay with those things?” Camerota asked, referring to Trump’s payouts to multiple women who claim they’ve had affairs with the president.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“No, I never said I was okay with those things,” Schlapp claimed, before complaining that Camerota was treating him with less respect than she had with her previous guest.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“I would like this interview to be along the same tone as Elizabeth Warren just had,” Schalpp whined. “Ask your questions and let me answer them.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“I'd like that, Matt, but you have to answer my questions and not redirect,” Camerota said.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“I get to do whatever I want,” Schapp insisted. “I have a First Amendment right to answer. I will answer any question you pose to me. If you're going to turn this into a morals case against Donald Trump what the reason for the special counsel was to determine whether or not there was collusion with Putin's government, I think that that is the ultimate redirect and I think it bastardizes the very reason for this investigation.”...</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">=</font></div><div><font size="4" face="Times New Roman">https://www.desmogblog.com/2018/01/02/suing-spree-oil-and-gas-industry-risks-speech-chilling-precedents</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In 2017, while the Trump administration absorbed media attention with its cries of “fake news,” the oil and gas industry was busy launching private legal actions across the U.S., attacking critics who presented information and opinions to the public.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Those lesser-noticed legal maneuvers, if successful in 2018, could create chilling new precedents, keeping important facts away from the public eye and making it more expensive and risky to talk about the fossil fuel industry's real and potential impacts on human health and the air, land, and water.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The past year brought some of the most aggressive lawsuits by the oil and gas industry against environmentalists in recent decades. They included legal moves aimed at preventing researchers from discussing their findings, motions painting political movements as for-profit conspiracies, and even a $5 million dollar lawsuit brought against a cancer patient whose tap water, state investigators determined years ago, was contaminated by gas drilling — by the company that is now suing him.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">That lawsuit, filed by a shale gas drilling company, claims that a Pennsylvania landowner violated a non-disclosure agreement by talking to the press about his fouled drinking water, his home's plummeting property value, the impacts of truck traffic on his community, the poor air quality around his home since drilling and fracking began in the area, or other problems he believes the company itself caused.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">These oil and gas industry cases — involving novel uses of conspiracy, defamation, and even wire fraud laws — represent new and concerted efforts by large corporations to make individuals and groups pay for presenting information and opinions to the public.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Cancer Patient Gagged</font></div><div><font size="4" face="Times New Roman">Dimock, Pennsylvania, landowner Ray Kemble, who was diagnosed with bladder cancer in March 2017, was sued in August by Cabot Oil and Gas, which drilled a series of Marcellus shale wells in Kemble's hometown.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Back in 2010 state environmental regulators concluded that Cabot Oil and Gas's drilling operations had contaminated the area's groundwater and ordered the company to cough up $4.6 million. In May 2016, federal health officials concluded that the drinking water in Dimock was indeed unsafe, and in December 2016, the U.S. Environmental Protection Agency's (EPA) long-awaited national study warned that hydraulic fracturing (fracking) has contaminated drinking water supplies across the U.S. (without directly commenting on Kemble's situation).</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Cabot signed settlements with virtually all of the families drawing water from the contaminated Pennsylvania aquifer, though the precise terms of those agreements remain secret. A separate federal lawsuit, brought by two families down the road from Kemble, the Elys and the Huberts, was settled in September for an undisclosed amount, a sign that the Ely and Hubert settlement also includes a non-disclosure clause.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Cabot's new lawsuit argues that a 2012 settlement bars Kemble from “disparaging” the company by discussing any harm he believes the company caused him — or even talking about things the company did after the settlement was reached.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">But good luck finding out what exactly a settlement agreement between Kemble and the company might have said: In December, Cabot argued in court that it didn't need to provide the document at the heart of the case to the attorneys representing Kemble's co-defendents, nevermind the public.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Non-disparagement and non-disclosure agreements have been in the public spotlight lately amid the #MeToo scandals, after it came to light that powerful sexual harassers and assaulters frequently used the clauses to prevent those they assaulted from talking publicly.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Critics argue that non-disclosure and non-disparagement agreements (NDAs) should also not be used in cases where the public health could be at risk, warning that NDAs could, for example, keep someone sickened after drinking bad water from warning their neighbors about the danger.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Legal experts have questioned whether courts would ever actually enforce such an order — so the case brought by Cabot against Kemble could set a significant precedent.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Cabot also sued Kemble's attorneys and the law firms where they work for representing Kemble in his earlier lawsuit against Cabot, which Kemble withdrew a few months after his cancer diagnosis (Kemble's attorneys have cited unspecified “new information” in explaining the decision to drop the case). Kemble's supporters say they fear that by including Kemble's attorneys in the lawsuit, Cabot is trying to make it harder for those harmed by powerful companies to find representation.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">On December 21, 2017, Susquehanna County Judge Jason J. Legg allowed Cabot's claims against the attorneys to go forward, while admonishing Cabot for breaking Pennsylvania's Rules of Civil Procedure by claiming $5 million in damages, even though the rules forbade Cabot to name a specific figure higher than $50,000 in their complaint. The judge noted that the claiming damages of $5 million “may have been designed to attract media attention” and “likely” served no legitimate legal purpose.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">To Kemble, the lesson is clear. “This is just a way to shut the people up of the county and of the state, and I just don’t think it’s right,” Kemble said, according to NPR's State Impact. “We the people have the right to talk.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Stop Citing Working Paper, Gas Supplier Demands</font></div><div><font size="4" face="Times New Roman">In a December 11, 2017 letter, natural gas supplier Eversource Energy demanded that environmental advocacy group Environmental Defense Fund (EDF) stop citing a study that found evidence that Eversource and another utility legally manipulated natural gas pipeline markets in ways that caused astronomical gas price spikes during cold snaps from mid-2013 to mid-2016.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">That analysis found that Eversource and Avangrid booked pipeline capacity and then left it unused, driving down New England's natural gas supplies while demand was high, costing New England's power customers over $3.6 billion. This working paper, prepared by a group of researchers including an EDF economist, emphasized that researchers hadn't found that anything the company's did was illegal, but suggested that the laws might need reform.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Those price spikes have been heavily touted by pipeline builders, who say they prove that New England needs to build more pipelines to carry fracked natural gas to the northern states in winter. The new study calls into question whether gas shortages were caused by a lack of pipelines or a failure to fully use the ones already built.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“Limited pipeline capacity is indeed partly responsible for these extreme prices,” the researchers wrote. “But we also find strong evidence that two firms that held significant shares of the contracts to flow gas on the Algonquin Gas Transmission Pipeline — one of the two major pipelines serving New England — regularly restricted capacity to the region by scheduling deliveries without actually flowing gas.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The cease and desist letter warns EDF that Eversource could sue the environmental group if it continues to cite claims the company describes as “unsupported by fact.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">EDF told DeSmog that the study has been presented for peer review, the method the scientific and academic communities use to ensure research is rigorous. “The Working Paper is going through the process for academic publication in a peer-review journal,” EDF spokesperson Jon Coifman told DeSmog. “Versions have been presented at several academic conferences and workshops.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Cease and desist letters are often sought in defamation cases, which allow people and companies to sue when someone harms their reputation by deliberately spreading false factual claims — which means it's unusual to see a cease and desist letter sent over scientific analysis.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The study was authored by Levi Marks, PhD candidate at the University of California, Santa Barbara and Charles Mason, Chair in Petroleum and Natural Gas Economics at the University of Wyoming, along with EDF researcher Kristina Mohlin, and Matthew Zaragoza-Watkins, Assistant Professor of Economics at Vanderbilt.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In November, Eversource and Avangrid were hit with a class action lawsuit over the same general allegations made in the study. The class action argues that the companies violated consumer protection and anti-trust laws, and unjustly enriched themselves by driving up power prices by 20 percent.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">EDF has rebuffed the cease and desist demand. “We stand by the analysis and reject this obvious attempt to intimidate and chill legitimate public inquiry,” Coifman told UtilityDive shortly after receiving Eversource's letter.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Suing the Grassroots</font></div><div><font size="4" face="Times New Roman">In August, Dakota Access pipeline builder Energy Transfer Partners (ETP) filed a major lawsuit alleging racketeering and conspiracy by the grassroots environmental movement Earth First!, along with environmental groups Greenpeace and Banktrack.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The lawsuit accuses the non-profits of seeking to profit through environmental activism. “Maximizing donations, not saving the environment, is Greenpeace's true objective,” ETP's complaint alleges, while accusing pipeline opponents of violating anti-racketeering laws (meant to protect against mafia-style organized crime) and characterizing emails and tweets sent by Dakota Access pipeline (DAPL) critics as wire fraud.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The lawsuit claims that ETP suffered nearly a billion dollars in damages and seeks to legally bar defendants from engaging in political protests. But civil rights advocates have taken issue with the coporation's approach.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“Defendants employed time-honored, lawful means to advance their views, protected by core constitutional rights of free speech and association,” the American Civil Liberties Union (ACLU) wrote in a friend-of-the-court brief objecting to ETP's claims of racketeering, defamation, and conspiracy. “Under ETP’s theories, ordinary political speech that runs counter to a corporation’s business interests could expose the speaker to enormous, unwarranted liability.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In December, attorneys for Earth First Journal, a publication whose name echoes the name of the activist group Earth First!, arrived in federal court to argue that Earth First! is a social movement based on a shared set of ideas, and not a legal entity like a corporation, and therefore isn't a thing that you can sue.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Earth First!, the journal's attorney said, lacks the sorts of characteristics you'd find at something like a corporation, like a leadership structure, employees, or even members.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Even if the oil industry's 2017 lawsuits don't make it very far, the specter of defending multi-million dollar legal claims could make non-profits and social movements nervous about publicly criticizing powerful corporations.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">And that, opponents say, is exactly the point.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“Defending major lawsuits like these against deep-pocketed corporations is extremely expensive, time consuming, and stressful, particularly for cash strapped non-profits,” ACLU staff attorney Brian Hauss wrote in a December 6, 2017 postabout ETP's 231-page lawsuit. “If the courts have any sense, this case won’t get to trial. But ETP doesn’t need to win in court to do major damage.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">=</font></div><div><font size="4" face="Times New Roman">https://www.desmogblog.com/2018/03/10/exxon-accuses-california-cities-misleading-investors-climate-change</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In January, ExxonMobil filed a legal petition seeking to depose more than a dozen city and county government officials in California, claiming that the municipal officials are defrauding investors by not fully disclosing the risks posed by climate change.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">You read that right. Exxon is legally challenging cities and counties for not talking up the risks of climate change enough to the investors who purchase municipal bonds for those localities. Has Exxon had a change of heart and now become concerned about transparency and the impacts of climate change?</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Let's take a closer look.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Exxon is responding to the municipalities which have filed lawsuits seeking to hold Exxon and other oil companies accountable for the damages to their cities from sea level rise. Exxon's legal petition is calling those lawsuits a “conspiracy” because — according to its petition — “A collection of special interests and opportunistic politicians are abusing law enforcement authority and legal process to impose their viewpoint on climate change.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The oil giant goes on to say: “ExxonMobil finds itself directly in that conspiracy’s crosshairs. Even though it has long acknowledged the risks presented by climate change …”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">You have to give Exxon’s lawyers credit for the sheer audacity of this legal maneuver and the claims that Exxon “has long acknowledged the risks presented by climate change.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">According to its legal filing, Exxon just wants to be able to talk about climate change but claims its First Amendment rights are being taken away by the lawsuits the various municipalities have filed:</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“Through abusive law enforcement tactics and litigation in California, Respondents and others are attempting to stifle ExxonMobil’s exercise, in Texas, of its First Amendment right to participate in the national dialogue about climate change and climate policy.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">How the lawsuits have stifled Exxon’s free speech is not clear from the legal document, but law experts say it certainly looks like an attempt to intimidate anyone considering holding Exxon and the industry accountable for the impacts of climate change.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“It’s an aggressive move,” Howard Erichson, a law professor at Fordham with expertise in the procedure and ethics of complex litigation, explained to Bloomberg. “Does Exxon really need these depositions or is Exxon seeking the depositions to harass mayors and city attorneys into dropping their lawsuits?”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Misleading Investors — Pot Meet Kettle</font></div><div><font size="4" face="Times New Roman">Exxon’s claim that these municipalities are misleading investors on climate change is interesting because that is — of course — exactly what Exxon has been accused of in multiple lawsuits and in the national dialogue over climate liability.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">One recent example of Exxon’s failure to disclose the risks of climate change to investors is its 2018 Energy and Carbon Summary. This is the report in which Exxon says none of its oil and gas reserves are at risk of becoming stranded assets due to climate action and that all of those reserves can be produced and consumed as the world pursues efforts to limit global warming to 2°C (3.6°F).</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Kathy Mulvey of the Union of Concerned Scientists highlighted how she believes Exxon is misleading investors in a recent statement:</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“Already facing liability from a rising number of climate-related lawsuits, the company has chosen to add another layer of risk by failing to disclose the challenges to its business model posed by assets that may not be profitable to extract in a carbon-constrained world, costly litigation, and climate impacts to its operations. ExxonMobil is leaving its shareholders in the dark as climate change barrels down the tracks.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">In an interesting turn of events, Exxon is using the tactic of accusing its opponents of what it appears to be guilty of when it comes to climate risks.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Panic in San Francisco</font></div><div><font size="4" face="Times New Roman">San Francisco is one of the cities targeted in Exxon's latest legal effort. The company makes the following claim:</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“The San Francisco Complaint contains panicked allegations about the 'imminent threat of catastrophic storm surge flooding' that global warming purportedly poses to San Francisco.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Yet earlier in the same legal document, Exxon said it had “long acknowledged the risks presented by climate change.” Bit of a change of tone.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">As for the “panicked allegations” about the threat of flooding in San Francisco, a brand new peer-reviewed study from UCBerkeley and Arizona State University appears to give San Francisco reason to panic. The study notes that San Francisco is even more vulnerable to sea level rise than previously thought because — unfortunately — the city is sinking. When combined with rising seas, concern about the city's future seems to be warranted.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Considering sea level rise alone, models show that, on the low end, 20 square miles could be inundated by 2100. But factor in subsiding land and that estimate jumps to almost 50 square miles. The high end? The San Francisco Bay Area is looking at 165 square miles lost.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The image below shows various scenarios for San Francisco’s future. The colored sections represent areas that would be experiencing “significant inundation by 2100.” SFO is the city's main airport.&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">[maps]</font></div><div><font size="4" face="Times New Roman">Scenarios for local land subsidence only (top), sea level rise in 2100 under a business-as-usual emissions pathway (middle), and a combination of the two (bottom) for Foster City, Union City, and San Francisco International Airport (SFO). Credit: Shirzaei and Bürgmann 2018, Science Advances</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Exxon Sticking to its Playbook</font></div><div><font size="4" face="Times New Roman">Exxon has known about the reality of climate change and its contribution to it for decades and actively worked to mislead the public, both directly and by funding climate science-denying groups, about that reality ever since. However, 40 years ago when Exxon realized the impact its business was having on the world’s climate, it was much easier to deny the scientific evidence.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The idea of regular flooding in downtown Boston probably seemed like science fiction at the time. In all likelihood, no one used the phrase “sunny day flooding” back then. Major prosperous cities weren’t running out of water. No one was sailing through the Arctic without an icebreaker. Those were different times.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The stakes have been raised as today the very real impacts of climate change are much more difficult to deny. But after committing to decades of climate science denial, it appears that Exxon intends to continue that approach and is even upping the ante with aggressive legal actions.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Because even though Exxon fails to mention the company’s exposure to climate liability to its investors, the possibility remains that international efforts to address climate change could seriously cut into Exxon’s profits. It should be expected that as the impacts of climate change continue to intensify, Exxon’s attacks on those looking to hold them accountable will ramp up as well.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman"></font></div><div><font size="4" face="Times New Roman"></font></div><div><font size="4" face="Times New Roman">https://www.alternet.org/news-amp-politics/alt-right-verge-collapse</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">no link</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">March 5, 2018</font></div><div><font size="4" face="Times New Roman">Michael Edison Hayden</font></div><div><font size="4" face="Times New Roman">Posted with permission from Newsweek</font></div><div><font size="4" face="Times New Roman">The white supremacist, alt-right movement that rose during the presidential campaign of President Donald Trump appears to be splintering.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Kyle Bristow, an attorney and key ally to alt-right leader Richard Spencer said this weekend he was dropping out of politics a day before he was slated to host a white nationalism-themed conference in Detroit, Michigan. As this was happening, other key figures in the movement lashed out at one another in a public way, accusing each other in heated terms of sabotaging their efforts to organize.</font></div><div><font size="4" face="Times New Roman">
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</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">The chaos, defection and infighting shows a political movement mired in turmoil seven and a half months after appearing united at the deadly Unite the Right event in Charlottesville, Virginia.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Bristow, a white nationalist lawyer based in Michigan, defected from the movement on Saturday just before his own organization, Foundation for the Marketplace of Ideas, was to hold an event in Detroit on Sunday. The event, which was billed as an opportunity to hash out the direction of the anti-immigrant, anti-Semitic alt-right movement, was cancelled. Spencer, who had been scheduled to attend Bristow’s event ahead of a speaking engagement on Monday at Michigan State University in East Lansing, was forced to hold a small gathering at a private residence as a substitute, he told Newsweek.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“I support Kyle in whatever path he chooses to take,” Spencer told Newsweek. “We’re in touch.”&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Spencer spoke at Michigan State University in front of a sparse crowd of fewer than 50 people on Monday. He didn't address the subject of splintering in his movement, but acknowledged that the alt-right was going through “growing pains.” The meager turnout for Monday’s rally showed a significant decline from rallies the alt-right held as recently as last October, when slightly more than 200 people showed up to a “White Lives Matter” in Tennessee.</font></div><div><font size="4" face="Times New Roman">
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</font></div><div><font size="4" face="Times New Roman">Bristow represented Spencer in his attempts to give speeches at several colleges throughout the country, and argued successfully to allow his client a chance to speak Monday at Michigan State University, his own alma mater. He was also an integral and unifying figure in the so-called racist right going back for the better part of a decade. Bristow published in 2010 a novel called White Apocalypse, which detailed violent fantasies directed at Jewish people, people of color and characters that eerily resembled staffers at the Southern Poverty Law Center. He also voiced big plans of creating his own rights group, as a way to defend the alt-right movement on grounds of free speech, and was in the middle of raising money on the crowdsourcing site Patreon toward that goal. Bristow did not respond to a request for comment, but he blamed his exit from the movement on journalists in a statement.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">“In light of the recent relentless and unjustifiable vilification of me, as well as the mischaracterizations of who I am as a person, I have unilaterally made the decision to provide this clarification and to withdraw from politics,” Bristow wrote on Saturday in a parting statement to the alt-right, which was published on his wesbite.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Ryan Lenz of the Southern Poverty law Center told&nbsp; Newsweek Monday that Bristow's unexpected departure was significant for the movement in part because it would force Spencer to find new representation to continue his current efforts at galvanizing press attention, which typically occur when protesters mobilize to shut down his speaking engagements. Bristow has bragged in the past that Foundation for the Marketplace of Ideas was the “sword and shield of the Alt-Right.” ?</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">To be sure, recent turmoil in the alt-right movement has spread beyond Spencer's inner circle. Daily Stormer, a neo-Nazi website that once served as the de facto homepage for young white supremacists, was uncharacteristically silent Monday about Spencer’s speaking appearance at Michigan State University. When Spencer spoke at the University of Florida in October, in contrast, the website promoted that event. The shift may have something to do with Spencer’s recent alignment with the Traditionalist Worker’s Party, a small, neo-Nazi group that has become a regular fixture at alt-right protests throughout the country over the last few years.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Andrew Anglin, Daily Stormer’s editor, sniped publically at Matt Heimbach, the leader of the Traditionalist Worker’s Party, calling him a “good-natured but socially awkward fat kid” on a popular alt-right forum on Saturday, while denouncing his influence as a leader. Anglin, and his colleague, Andrew “Weev” Auernheimer, took turns ridiculing the presentation of Traditionalist Worker’s Party rallies, suggesting their uniforms and “communist” rhetoric were discouraging people from aligning with their cause.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“Everyone in the alt-right is a malignant contrarian,” Lenz said about the growing divisions in their movement following the united front the alt-right displayed in Charlottesville. “They come from a culture where insults are the coin of the realm.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Anglin and Auernheimer were in turn criticized in a public way on the same forum throughout Saturday and Sunday for linking the alt-right to overt neo-Nazism, violence and misogyny. Auernheimer has publically praised Atomwaffen, for example, a neo-Nazi group linked to a string of brutal murders, a move that has caused embarrassment to Traditionalist Worker’s Party and members of the “Southern Nationalist” outfit League of the South, two groups that marched in Charlottesville last August. Anglin has spoken in sadistic terms about white women, going so far as to celebrate the idea of them being raped and physically abused.&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Daily Stormer are “hypocrites who are clinging to failed reactionary politics,” Heimbach told&nbsp; Newsweek on Monday about the public collapse into infightin</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman"></font></div><div><font size="4" face="Times New Roman">&nbsp;=</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">http://www.alternet.org/news-amp-politics/inmate-sues-prison-imposing-christian-propaganda</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Shari Webber-Dunn, an inmate serving a murder charge in Kansas, said her First Amendment rights were violated by "Christian propaganda" imposed by the all-female prison.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The lawsuit alleged that the Topeka Correctional Facility in Kansas unconstitutionally embraces Christianity by displaying an eight-foot-tall wooden cross in its basement, publically posting prison-related prayers, soliciting book donations for a spiritual library and offering prayer request submission on a Christian bulletin board. Christian movies are also broadcasted on facility televisions and spiritual quotes are posted at the laundry room workplace, the lawsuit explained.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Webber-Dunn believed that the correctional center was "imposing strong Christian values on inmates" and creating "a coercive atmosphere where inmates are pressured to spend their time in a highly religious atmosphere and to participate in religious activities and prayers."</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Inmates are prohibited from removing anything from the public bulletin boards, which Webber-Dunn said violates the establishment clause prohibiting government agencies from establishing a religion.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">"There is no valid reason why Christian materials should be displayed there in a state-owned and operated correctional facility," the lawsuit said, referring to the prison laundry room, where inmates are required to drop off and pick up clothes three times a week.</font></div><div><font size="4" face="Times New Roman">
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</font></div><div><font size="4" face="Times New Roman">Webber-Dunn wants the religious items removed and the eight-foot cross covered when it's not being used for Christian religious services. She is partnering with the American Humanist Association—a nonprofit organization dedicated to advancing the separation of church and state. The group champions the constitutional rights of humanists and atheists. Webber-Dunn is registered with the prison as a practicing Thelemite, a system that encourages people to follow their true will and not interfere with the true will of another person.&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">...</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman"></font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman"></font></div><div><font size="4" face="Times New Roman">http://www.prwatch.org/news/2017/05/13240/bradley-foundation-bankrolls-front-groups-richard-berman</font></div><div><font size="4" face="Times New Roman">In addition, Bradley is recommending a $200,000 grant in renewed support for ALEC in 2016 as it continues to build a "comprehensive communications infrastructure" in response to citizen campaigns targeting its funders. The grant summary reads: "ALEC has been under sustained, organized attack from the Left for several years, as well-documented in Bradley Prize recipient Kimberly Strassel's new book The Intimidation Game: How the Left Silences Free Speech. Under Executive Director Lisa Nelson and at Bradley's urging, ALEC is aggressively, but thoughtfully responding." "The plan consciously mimics the Left's Citizen Engagement Laboratory (CEL)...the parent organization of Forecast the Facts and Color of Change."</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">ALEC also redesigned and beefed up its website, deployed more social media, and partnered with CrowdSkout a data analytics company to track, view and engage supporters (ALEC, Grant Proposal Record, 8/16/2016).</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Bradley outlines the bigger game plan for ALEC: "The larger plan also has an important component for aggressive 'opposition research,' which has yielded many beneficial outcomes, including to Strassel for her helpful book, among others." This last comment in the Bradley documents suggests that ALEC provided Wall Street Journal editorial writer Kim Strassel with information for her book Intimidation Game. In it, Strassel portrayed the sustained citizen campaigning against ALEC as a well-funded, nefarious effort to crush the "free speech" rights of ALEC and its enormous funders, including Koch Industries, ExxonMobil, Pfizer, and ALTRIA/Phillip Morris (Strassel received a $250,000 Bradley Prize in 2014).</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">As part of its opposition research funding, Bradley recommended $115,000 in 2016 for the Capital Research Center run by Bradley-ally Scott Walter to develop "an online encyclopedia of the left" in conjunction with Berman that mimics the Center for Media and Democracy's Sourcewatch.org wiki. CRC wants to focus on the anti-ALEC groups and the Democracy Alliance, a group of liberal funders.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman"></font></div><div><font size="4" face="Times New Roman">U.S.</font></div><div><font size="4" face="Times New Roman">FEB 18, 11:44 AM EST</font></div><div><font size="4" face="Times New Roman">
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</font></div><div><font size="4" face="Times New Roman">BUSINESS</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Food Labeling Laws Could Be Undermined By First Amendment Court Challenge</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">BY CONNOR ADAMS SHEETS @CONNORASHEETS ON 05/20/14 AT 12:24 PM</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">&nbsp;</font></div><div><font size="4" face="Times New Roman">The meat processing industry’s drive to overturn revised country-of-origin labeling (COOL) laws continued Monday, when the full U.S. Court of Appeals for the D.C. Circuit considered the industry’s argument that the regulations violate free speech laws.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">If the court sides with the meat industry, the fallout could have far-reaching consequences, as it would potentially undermine a wide range of labeling laws, particularly COOL regulations, which require companies to disclose where their products and ingredients are produced and manufactured through the display of packaging labels. Most American consumers are familiar with common COOL labels like "Made in China" or "product of the United States" from everything from sneakers to frozen hamburger patties, even if they are not aware of how exactly they are regulated.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The meat industry made its case during Monday’s en banc review -- an uncommon type of proceeding conducted before all 11 judges on the court rather than the typical three-judge panel -- that the COOL laws as revised in 2013 infringe on companies’ First Amendment rights by compelling speech.</font></div><div><font size="4" face="Times New Roman">
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</font></div><div><font size="4" face="Times New Roman">An upcoming court decision could undermine a whole host of food labeling laws that serve to inform consumers about the origins of what they eat.&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Chief Judge Merrick Garland said that in order to decide that First Amendment rights were being violated under the regulations, the court would “have to strike down at least half a dozen statutes on the books since the 1930s,” according to Politico. He also pointed out that many products far beyond the scope of the meat industry, including the razor he shaved with Monday morning, are required to display COOL labels, Politico reported.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">As such, a decision by the court that the COOL labels infringe on companies’ free speech rights could mean changes for industries that rest far beyond the food realm.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">A three-judge panel of the court handed down a decision on March 28 suggesting that the en banc hearing on just the First Amendment issues be held at a future date, but otherwise affirming a district court’s decision not to allow a preliminary injunction against the 2013 COOL laws. The case is known as American Meat Institute vs. U.S. Department of Agriculture.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“We suggest that the full court hear this case en banc to resolve for the circuit whether, under Zauderer, government interests in addition to correcting deception can sustain a commercial speech mandate that compels firms to disclose purely factual and non-controversial information,” the three-judge panel wrote in the March 28 decision.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The National Farmers Union and other American farmers’ and food production industry groups like the U.S. Cattlemen’s Association and the Consumer Federation of America continue to support the laws, which provide clarity about food origins.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“The information required by the regulation to be provided is factual and noncontroversial,” NFU President Roger Johnson said, according to the Ohio’s Country Journal agricultural publication. “I am hopeful that the full Circuit will affirm the panel’s prior decision and continue to deny the preliminary injunction requested by appellants.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">But the American Meat Institute has consistently argued that the laws will have serious negative impacts on the meat industry.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Related Stories</font></div><div><font size="4" face="Times New Roman">Vermont Becomes First State To Mandate GMO Labeling</font></div><div><font size="4" face="Times New Roman">Pro-GMO Bill Could Repeal Rules To Label GMOs In Food</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">“It is incomprehensible that USDA would finalize a controversial rule that stands to harm American agriculture, when comments on the proposal made clear how deeply and negatively it will impact U.S. meat companies and livestock producers,” AMI Senior Vice President of Regulatory Affairs and General Counsel Mark Dopp said last year. “This rubber stamping of the proposal begs the question of the integrity of the process:&nbsp; many people spoke, but no one at USDA listened.”</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Food labeling is a major issue in food and agriculture circles, as food safety advocates and right-to-know groups have gone head-to-head with food manufacturers and industry groups over whether foods containing GMOs should be labeled, as well as what exactly labels like “natural” or “organic” should really mean.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The GMO labeling debate has made headlines in recent months, particularly in Vermont, where Gov. Peter Shumlin signed the nation’s first unconditional mandatory GMO labeling bill into law on May 8.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The Vermont law is the first in the nation to require a state to begin labeling foods that contain genetically modified ingredients no matter how other states' lawmakers decide to address the issue. Connecticut and Maine had already passed GMO labeling laws, but the launch of their labeling regimes does not begin unless other states pass similar bills.</font></div><div><font size="4" face="Times New Roman">=</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">pwl memo : Another significant shift in the law since Powell’s memo was circulated has been the gradual expansion of corporate constitutional rights (referred to by some business groups as “business civil liberties”), especially in the realms of commercial and political speech. The most infamous example is the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission. In the commercial sphere, companies have similarly used corporate speech doctrines to challenge various restrictions on corporate advertising (e.g. direct-to-consumer advertising of prescription drugs for off-label uses), limits on media ownership, and product safety labeling requirements (e.g. cigarettes and genetically modified foods).</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Corporate constitutional rights are regularly claimed (with the implicit threat of litigation) in opposition to new or proposed regulations. One recent example came during recent attacks on regulations created by the Dodd-Frank financial reform package, which contained a provision requiring that companies report their use of tin, gold and other minerals that can be traced back to the conflict-ridden Democratic Republic of the Congo. In its comments to the SEC, Tiffany & Co. claimed the SEC rules would “compel speech in a manner that violates the First Amendment.”</font></div><div><font size="4" face="Times New Roman">
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</font></div><div><font size="4" face="Times New Roman">D.C. Circuit Vacates Dodd-Frank Conflict Minerals Provision & SEC Rule as Violating First Amendment Free Speech</font></div><div><font size="4" face="Times New Roman">By Leland E. Beck on April 14th, 2014</font></div><div><font size="4" face="Times New Roman">Posted in Agency Authority, Constitutional Issues in Regulations, Regulatory Process</font></div><div><font size="4" face="Times New Roman">The United States Court of Appeals for the District of Columbia today, in National Association of Manufacturers v. SEC, affirmed a district court judgment that the Securities and Exchange Commission (SEC) did not violate procedural requirements or misconstrue the statute in promulgating the Conflict Minerals Rule, but vacated the specific underlying statutory provision and the rule because the requirements compelled speech in violation of the First Amendment to the United States Constitution.&nbsp;</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Compelling reporting, disclosure, and publication to the extent that entails “compelled speech” pose a distinct constitutional limitation on both statutes and rulemaking under statutes.&nbsp; Agencies must consider carefully this developing caselaw in formulating any reporting requirement that will be publicly disclosed – and provide a detailed justification for such requirements in the preamble of any such rule – or counsel for regulated parties will, and should, press judicial review.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Dodd-Frank Act:&nbsp; In the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act, Congress required the SEC to issue regulations requiring companies using “conflict minerals” – gold, tantalum, tin, and tungsten mined from the Democratic Republic of the Congo or an adjoining country – to investigate and disclose the origin of those minerals.&nbsp; The statutory scheme applies only to “person[s] described” in the Act – those if conflict minerals are necessary to the functionality or production of a product manufactured by the company.&nbsp; A covered company must disclose annually, whether the necessary conflict minerals originated in the DRC or an adjoining country.&nbsp; If so, the company must file a report with the SEC, describing the due diligence measures taken to establish the source and chain of custody of the minerals, including a private sector audit of the report.&nbsp; The report must also list the products manufactured or contracted to be manufactured that are not “DRC conflict free.”&nbsp; A product is “DRC conflict free” if it’s necessary conflict minerals did not “directly or indirectly finance or benefit armed groups” in the covered countries.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman"></font></div><div><font size="4" face="Times New Roman">Sorrell v. IMS Health Inc., 564 U.S. 552 (2011), was a United States Supreme Court case in which the Court held that a Vermont statute that restricted the sale, disclosure, and use of records that revealed the prescribing practices of individual doctors violated the First Amendment.[A]</font></div><div><font size="4" face="Times New Roman">
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</font></div><div><font size="4" face="Times New Roman">Contents&nbsp; [hide]&nbsp;</font></div><div><font size="4" face="Times New Roman">1<span style="white-space:pre"> </span>Background</font></div><div><font size="4" face="Times New Roman">2<span style="white-space:pre"> </span>Opinion</font></div><div><font size="4" face="Times New Roman">2.1<span style="white-space:pre"> </span>Dissent</font></div><div><font size="4" face="Times New Roman">3<span style="white-space:pre"> </span>Notes</font></div><div><font size="4" face="Times New Roman">4<span style="white-space:pre"> </span>References</font></div><div><font size="4" face="Times New Roman">Background[edit]</font></div><div><font size="4" face="Times New Roman">In 2007, Vermont passed the Prescription Confidentiality Law which required among other things that records containing a doctor's prescribing practices not be sold or used for marketing purposes unless the doctor consented. The law was a response to a Vermont Medical Society resolution stating that using the prescribing history of doctors in marketing was an intrusion into the way doctors practice medicine.[2][3] The Vermont Medical Society had found that the marketing efforts of pharmaceutical companies used in large part the data of individual doctors' prescribing patterns, sold to the companies by pharmacies without the doctors' consent[4] and successfully lobbied the Vermont legislature to enact the law.[5]</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Data mining companies and pharmaceutical manufactures contended that the law violated their First Amendment rights and sought declaratory and injunctive relief against Vermont officials.[B] The United States District Court for the District of Vermont denied relief; the plaintiffs appealed to the United States Court of Appeals for the Second Circuit which reversed, holding that the law violated the First Amendment by restricting the speech of the companies without adequate justification.[C] Vermont's Attorney General appealed to the The Supreme Court, which granted certiorari to resolve the contradiction of a ruling of the United States Court of Appeals for the First Circuit US Court of Appeals for the First Circuit, which had overturned similar laws in New Hampshire and Maine, concluding that the laws regulated economic conduct. not commercial speech.[6]</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Opinion[edit]</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The first finding of the Court was that the law placed content and speaker based restrictions on speech.[D] Citing Cincinnati v. Discovery Network, Inc., the Court noted that these restrictions warranted heightened judicial scrutiny.[E]Associate Justice Anthony Kennedy delivered the opinion of the Court, which Chief Justice Roberts, Justice Scalia, Justice Thomas, Justice Alito, and Justice Sotomayor joined. The Court held that the law violated the First Amendment and affirmed the judgment of the Court of Appeals.</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The Court rejected Vermont's argument that the law was only a commercial regulation and not a regulation of speech on the grounds that the law imposed more than an incidental burden on speech.[F]</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">The second and final finding of the Court was that Vermont did not meet its burden to justify its content-based law as consistent with the First Amendment. According to Board of Trustees, State Univ. of N. Y. v. Fox, Vermont must demonstrate that the law directly advances a substantial government interest.[G] The Court rejected Vermont's claims that the law was necessary to protect medical privacy and achieve improved public healthcare.[H]</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Dissent</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">Associate Justice Stephen Breyer wrote a dissenting opinion, which Justice Ginsburg and Justice Kagan joined. Breyer argued that the law should be reviewed as an economic regulation, not under a heightened standard applied for First Amendment issues. Breyer found that the legitimate regulatory objectives outweighed the small harm done to First Amendment interests.[I] Breyer also noted that applying a strict First Amendment standard whenever a legislative program burdened speech would give judges the power to choose to undermine or support legislative efforts.[J</font></div><div><font size="4" face="Times New Roman">]</font></div><div><font size="4" face="Times New Roman">
</font></div><div><font size="4" face="Times New Roman">==</font></div></div>