Archive | Freedom of Association

First Amendment Rights of Lawful Residents

A newly filed case, Bluman v. FEC, challenges 2 U.S.C. § 441e, which provides:

It shall be unlawful for—
(1) a foreign national, directly or indirectly, to make—
(A) a contribution … in connection with a Federal, State, or local election;
(B) a contribution or donation to a committee of a political party; or
(C) an expenditure, independent expenditure, or disbursement for an electioneering communication ….

(b) … As used in this section, the term “foreign national” means … an individual who is not a citizen of the United States … and who is not lawfully admitted for permanent residence ….

Plaintiffs say they live in the U.S. and have visas that let them work at a particular place, though they aren’t permanent residents (a status that would let them work anywhere). People with such visas (or with student visas) may often live legally in the U.S. for many years without becoming permanent residents or citizens. Generally speaking, they have the same First Amendment rights as citizens (at least when it comes to criminal or civil liability for speech); the question whether that also extends to (1) the right to contribute to candidates or parties, and (2) the right to make independent expenditures in support of or opposition to candidates. Prof. Rick Hasen (Election Law Blog) has more. [...]

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A Thought from Prof. Michael McConnell

Stanford law professor (and former judge) Michael McConnell, who represented the Christian Legal Society before the Supreme Court in Christian Legal Society v. Martinez, e-mails this:

I had a mischievous thought, which I thought I would offer to your blog:

I have a suggestion for the City of New York City, if it wishes to resolve the Ground Zero Mosque controversy in accordance with our constitutional traditions. It could require that the leadership of any nonprofit organization using city streets or water within the 9-11 zone be open to “all comers, without discrimination based on status or belief.” We have it on good authority that this is a neutral policy, violating no one’s First Amendment rights. Christian Legal Society v. Martinez. Lower Manhattan would be as free as a public university campus. The City could congratulate itself for promoting “tolerance” and “diversity” — without having to put up with those pesky Muslims. Who could possibly object?

UPDATE: Note that the “suggestion” (which is of course a criticism of the Court’s decision in Christian Legal Society, not of the proposed mosque) relates to requiring that the leadership of the organization be open to all comers. The mosque would thus be excluded even if it welcomed everyone to attend, so long as it limited its leadership to coreligionists (as any religious group surely must). The policy in Christian Legal Society in fact required such open access to student group leadership, not just to attendance at student group functions. [...]

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First Amendment Clash Brewing Over Gay Pride Festival in Minneapolis

Must an expressive association that paid for a permit in a public park to advance its message include someone using the event to convey an opposing message? Specifically, must an anti-gay preacher and others be allowed to condemn homosexuality in signs and literature by roaming the permit grounds of a gay-pride celebration?

For more than 30 years, gay-rights organizers have annually paid for a permit to hold a gay-pride festival in a small park near downtown Minneapolis.  Last year this cost amounted to more than $36,000 in fees and proceeds paid to the Minneapolis Park and Recreation Board (MPRB), which is run by elected commissioners.  More than 400,000 people attend the 2-day festival. The non-profit and mostly volunteer group that runs and pays for the event, Twin Cities Pride (TCP), does so in order to celebrate “Pride,” and to promote equality and acceptance for GLBT people.

Other gay-supportive organizations and vendors are required to distribute literature and display signs only from individual booths, which are approved by TCP if their message is consistent with the Festival message. Other restrictions are imposed to limit littering (for which TCP is responsible) and to maintain crowd control and pedestrian flow. The booths are charged fees that help defray the cost of post-event cleanup, the permit fees, insurance, and contribute significantly to TCP’s annual budget.

This year, an anti-gay activist and preacher named Brian Johnson and his family have insisted that they be given access to the permit grounds during the hours of the festival in order to display signs, distribute literature, and peronally counsel attendees with an opposing  message: that homosexuality is sinful and must be condemned rather than accepted.  Johnson was arrested for trespass last year after he confronted some festival-goers with his message of repentance and condemnation.

Facing potential litigation, [...]

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