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Want to know what is on our minds? Find blog posts written here, by the City Club staff, members, and partners. Every week you can find a new edition of #FreeSpeech in the News — a collection of related stories, commentary, and opinions on free speech in the 21st century that’s making the news. You’ll also find takes on current events, past forums, and issues surrounding Northeast Ohio. Read on for all things City Club.

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Wednesday, December 16, 2020

#FREESPEECH in the News December 16, 2020

Bliss Davis, Content and Programming Coordinator, The City Club of Cleveland

#FREESPEECH in the News December 16, 2020

As the Citadel of Free Speech here in Cleveland, we work to protect and promote the basis of our democracy by sharing related stories, commentary, and opinions on free speech in the 21st century. Here's what's making the news – and what you should know about – in the past week.

1.) Street Preacher Kicked Out of Festival Takes Free Speech Case to 8th Circuit

The First Amendment rights of an Iowa street preacher were violated when police hustled him away from a Davenport street festival, his lawyer told an Eighth Circuit panel Tuesday. Not so, countered a lawyer for the city: The street preacher was disrupting a public festival and his removal by police had nothing to do with the content of his speech, he said.

Cory Sessler sued the city and three Davenport police officers who made him leave a downtown street festival site in 2018 after they received complaints that some festivalgoers were offended by his amplified preaching and placards warning that sinners are destined for hell.

A federal judge in Des Moines rejected Sessler’s motion for a preliminary injunction to stop the city from prohibiting his preaching at future public events. Sessler appealed to the St. Louis-based Eight Circuit, asking it to reverse that ruling.

The three judges on the panel – Chief U.S. Circuit Judge Lavenski Smith and Senior U.S. Circuit Judge Michael Melloy, both George W. Bush appointees, along with U.S. Circuit Judge James Loken, a George H.W. Bush appointee – heard starkly different reasons for Sessler’s removal from the festival during Tuesday’s remote hearing.

2.) New NY law bans sale of Confederate flags on state property

The sale or display of Confederate flags, swastikas and other "symbols of hate" on state property is banned in New York under a law signed by Gov. Andrew Cuomo despite concerns it may violate free speech protection under the U.S. Constitution. Exceptions are made for images used in books, museum services or materials used for educational or historical purposes.

The display of Confederate flags has come under fire as part of the national reckoning over racial injustice. The rebel flag has been used by Ku Klux Klan groups and is widely condemned as racist. but New York’s new law raises free speech issues.

"The First Amendment generally protects the expression of even hateful speech, and a statute banning the sale of materials expressing those views on state-owned land is highly likely to be held unconstitutional," said attorney Floyd Abrams, who has argued frequently before the Supreme Court in First Amendment cases. Cuomo acknowledged in his signing memo that certain "technical changes" will be needed in the law to make sure free speech protections aren’t violated. He said he has agreed with the Legislature to address the concerns.

3.) Fourth Circuit Hears Free Speech Case Centered on Racial Slur

A Fourth Circuit panel heard arguments Thursday over whether a former Air Force officer’s use of a racial slur toward a Black store clerk fell within the “fighting words” exception to free speech protection.

Lieutenant Colonel Jules Bartow was convicted under Virginia’s abusive language statute for posing a series of rhetorical questions that included a racial slur to a sales associate at the Marine Corps Exchange store in Quantico.

His counsel on Thursday pressed a three-judge-panel of the Richmond-based appeals court to overturn a federal judge’s denial of his motion for acquittal last year after a bench trial. The lower court judge held that Bartow’s speech was not protected under the First Amendment because he had used “fighting words.”

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