Entries Tagged '1st Amendment' ↓

I had to chuckle about how councilor Starr successfully fought the mayor tonight about extending public input about the mask mandate, then when Pat spoke later after public input the crowd that he fought for to speak heckled him. Wow.

I often have to remind my friends, my enemies, local elected officials, relatives and others that the 1st Amendment is number one for a reason, freedom of speech is the only thing you should be concerned about. Everything else is moot.

BTW, the mask mandate failed because it was a tie and Mayor TenHaken voted it down, because he lacks leadership. Shocker.

Also, councilor Selberg made fun of Starr for taking on the mayor calling it the ‘Pat Starr Show’.

While Selberg may have invented the ‘Siouxper Hero’ award, he certainly earned the ‘Siouxper jerk Councilor’ award tonight.

I’m not going to mince words, this is just a blatant coverup;

But exactly how often are ethics complaints actually brought against city employees and elected officials, and for what? Well, taxpayers aren’t supposed to know.

There have been 16 ethics complaints filed with the Sioux Falls Board of Ethics since Jan. 1, 2000, according to the city’s recent response to an Argus Leader open records request.

But City Attorney Stacy Kooistra said not only could the details of those complaints not be released, neither could the roles held by those accused. Kooistra cited state law and city ordinances.

The only path to transparency on those ethics complaints is if the accused waives confidentiality.

Of those 16 complaints, only two have elected to do so.

While I don’t think there should be confidentiality to begin with, what I don’t understand is after a complaint has been thrown out, why does it remain confidential? While Kooistra may be correct that they have a right to confidentiality, I think that right ends once the complaint has been thrown out and the public has a right to see the complaint and the reason it was thrown out. I don’t think the law is on their side after the complaint has been thrown out. I believe there are two reasons why they are claiming they can do this 1) They don’t want the public reviewing the complaints that are thrown out and questioning why they were thrown out and 2) This administration has a deep, deep, deep hatred of open government, it’s almost a feverish sickness within city hall. It often amazes me why someone has such deep hate in their souls for something that is the moral, honest and the ethical thing to do AND actually saves taxpayers money.
You also have to remember that ANY complaint can be simply thrown out as frivolous if the complainant doesn’t cite the correct chapter in law/ordinance. You wonder how often this has happened? So while the complaint could have substance, it could get booted due to the ignorance of the complainant. Should the city attorney or ethics board be assisting the complainant to cite the proper ordinance? Yes!!!!

But, not only is there a DEEP HATE for open government they seem to be delusional about what an ethics indictment means;

The confidentiality of the complaints has been cited as a way to prevent their use as a weapon. Neitzert only waived confidentiality on the complaint following his successful re-election, saying there was “clear evidence of a timed and coordinated attack against my character for the purposes of defeating me in my re-election effort.”

Greg seems to be confused, because he WAS indicted on the complaint;

The board found probable cause that there had been a violation of ethical ordinances, but added that it was a ‘common practice’ for councilors to have their expenses paid for by a third party and that the City Council’s rules around such matters were broad and confusing.

The board recommended no individual sanctions against Neitzert, who was later cleared of the charge in a 5-2 vote of the City Council.

While Greg’s best buddies on the City Council dismissed punishment, Neitzert was still indicted by the ethics board and that remains unchanged. It wasn’t a political attack since the ethics board did say he violated charter. Him and the mayor accepted the gift and took the trip. A political opponent had nothing to do with that violation. In fact, to this day Greg hasn’t been able to show evidence that the complaint filed against him had any connection to his opponent. Not one shred. The only thing the ethics commission did say was he didn’t deserve sanctions since everybody was apparently ‘doing it’ even though they gave no evidence of who these other councilors or mayors that were doing it. Even though we know TenHaken has been ‘doing it’ quite a bit.

As I said from the beginning, this is clearly just a coverup. I would love it if Attorney Kooistra provided us the laws and ordinances that cover, coverups but not until he figures out prior restraint and the 1st Amendment.

I often scratch my head by how little our state legislature and governor know about the US Constitution;

Governments in South Dakota, across the country and the world used mask mandates and business restrictions to slow the spread of the COVID-19 pandemic.

Some lawmakers, though, say those mitigation efforts don’t jive with the First Amendment of the U.S. Constitution. And now a bill making its way through the legislature would narrow the scope of when cities, counties and townships can make people wear masks or force businesses to close in the name of public health.

It is NOT a 1st Amendment issue, it has to do with trespassing and property rights which is covered under the 4th Amendment;

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The 5th and 14th could also apply. But I have often said that mask mandates in general are moot because the US Constitution already protects business owners from trespassers. If you have a sign on the front door of your business that says you must wear a mask and you refuse, that business can call the police and you can be prosecuted for trespassing. Those laws already exist.

I would argue that any municipal government can implement a mask mandate as long as that mandate is about private business and private property and within their 4th Amendment rights (in other words private businesses and even churches could ignore the mandate).

The 1st Amendment argument holds no water because as we saw with Trump’s Twitter ban, private business CAN limit your speech on their premises, platforms or property.

Where I would side on the 1st Amendment argument is that it would be unconstitutional for government to mandate mask wearing on their (your taxpayer funded) property.

Once again the statehouse is filling their short session with foolishness.

At the meeting Tuesday night I spoke about two subjects; Covid Tourism (FF 20:00) and Prior Restraint (FF 30:50)

American free speech advocates have consistently defended the right of individuals to engage in offensive speech, including speech which many observers might deem “hate speech.” In the wake of the riot on Capitol Hill, many critics have argued that the violence was sparked by comments made by President Trump and some of his allies, and that therefore they should be prosecuted or otherwise punished. Assuming that the violence was caused by speech, can free expression advocates support punishment for the speaker while still supporting the legal protections for “hate speech” or other offensive speech?

Short answer: Yes.

“Hate speech” laws seek to punish opinion. Punishing opinion is, and should be, forbidden. No person or group that happens to hold power at any given time should be permitted to determine what others are allowed to think. However certain narrow types of speech that go beyond mere expression of opinion can sometimes be unprotected by the First Amendment.

Why Is Hate Speech Protected?

There is no “hate speech” exception to the First Amendment; hence, there is no legal definition of what, precisely, constitutes “hate speech” in the United States. However, the International Covenant on Civil and Political Rights does have a hate speech provision (Article 20), which states that “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility, or violence shall be prohibited by law.” As a result, many other countries have outlawed “hate speech.” Under those laws, a book by bell hooks has been confiscated in Canada for including what authorities deemed to be anti-male hate speech; Catalan protesters in Spain have been fined for burning photographs of the king of Spain; and a British citizen was convicted for exhibiting a poster after the 9/11 attacks which depicted the Twin Towers in flame and included the words, “Islam out of Britain – Protect the British People.”

As these examples make clear, “hate speech” laws permit the punishment of the mere expression of an opinion deemed offensive. That’s why such laws are unconstitutional in the United States, for the Supreme Court has repeatedly upheld that “the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.”

When Is Offensive Speech NOT Protected by the First Amendment?

Speech which is merely offensive is always protected by the First Amendment. However, some types of speech which are often conflated with “hate speech,” but which go beyond expressions of opinion can, in limited circumstances, be unprotected by the First Amendment.

Let’s talk about incitement to violence and harassment.

Incitement to violence, including incitement to racial violence, is not protected by the First Amendment. This is a very narrow exception; mere advocacy of violence cannot be made criminal “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Three elements must be met: (1) the speaker must intend to cause violence, (2) he or she must intend that the violence occur immediately, and (3) the violence must be likely to occur immediately.

The distinction between incitement and “hate speech” is illustrated by the Supreme Court’s decision in Wisconsin v. Mitchell.  In that case, several young Black men were discussing the movie Mississippi Burning, which is about the Civil Rights Movement. One of the men said, “Do you all feel hyped up to move on some white people?” and, when a young white boy approached, said, “You all want to fuck somebody up? There goes a white boy; go get him.” The group then assaulted the boy, and the speaker was charged with assault, plus a hate crime enhancement. Was Mr. Mitchell’s speech “hate speech”? It’s arguable. But his speech was much more than the mere expression of opinion; it was a call to immediate violence. 

Harassment is distinct from “hate speech” because it goes beyond mere expression of opinion and targets a particular person for harm. The threshold for speech rising to the level of illegal harassment is generally quite high. Anti-harassment laws often refer to speech directed at a particular person, based on the victim’s race, religion, or other group characteristic, and which has the purpose or effect of substantially interfering with, for example, a student’s educational performance or creating an intimidating, hostile or offensive environment. 

These exceptions to the protections of the First Amendment are very narrow, but they are well established. Civil libertarians and supporters of free expression–including protest, writing and art–can and should support the right to express hateful opinions, but can draw a clear line that no one has a right to incite a riot or to harass another person.   

See this primer at NCAC.org

“The pen is mightier than the sword” were first written by novelist and playwright Edward Bulwer-Lytton in 1839, in his historical play Cardinal Richelieu.

And he is correct. It is a short sentence I have embraced most of my life, your words hold power, they hold even more power when they are truthful and righteous and when you deliver them with confidence and peace.

I think the first time I showed up at Carnegie town hall to speak about injustice in our city was in 2003 when the council voted to shut down the LOOP. Passionate citizens voiced their opinions about it. I think I talked about my opposition to street closures (which was a failed amendment). I think speech is more powerful than guns and insurrection. Freedom is FREE, Speak Out!

When I watched these anti-democratic protesters yesterday storm the US Capital based on the lies that have been fed to them by an unqualified president, one thing came to mind;

“You know, to just be grossly generalistic, you could put half of Trump’s supporters into what I call the basket of deplorables. Right?” Hillary Clinton said. “The racist, sexist, homophobic, xenophobic, Islamaphobic—you name it. And unfortunately there are people like that. And he has lifted them up.”

She said the other half of Trump’s supporters “feel that the government has let them down” and are “desperate for change.”

“Those are people we have to understand and empathize with as well,” she said.

The people who stormed the capital yesterday were not freedom loving Americans, they were deplorables.

While I don’t agree with many decisions made in DC, Pierre or at City Hall, I don’t take up arms or glorify one leader over another, I speak out.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

Self-evident. Think about that. Reality is right in front of us, it is not created or manufactured.

If you want to make change, you do it with words. I have never accomplished change in this community with the sword, I have only done it with the pen. Condemn those who use lies and violence to push their agenda, only those who speak the truth under an olive branch deserve the power to transform our lives.

When I have written parodies in the past, I have been warned by friends to be careful how I label them so people know for sure that it is a parody. I didn’t find a disclaimer on their latest article;

For dealing with such unprecedented problems all at once, Mayor Paul TenHaken is KELO.com News’ “Person of the Year for 2020.”

Boy, nothing like a good laugh right away in the morning. I am curious who with the news team at KELO decided this was a good choice (names please) and who were Paul’s competitors? Not sure, but they tell us why he was named (by unnamed folks) beating out (unnamed) competitors;

Sioux Falls mayors had faced civil unrest before. Sioux Falls mayors had faced great economic uncertainty. And Sioux Falls mayors had faced a pandemic. But none of them faced all three difficult situations at the same time in the same year. Under his watch, Mayor TenHaken navigated the city through the politics of the coronavirus, which also caused a bump in the city’s usually robust economy. And he had to quell a property damaging riot that sprang from a peaceful rally in response to the murder of George Floyd in Minneapolis.

First, I will state the obvious, you know I would not agree, but secondly, It kind of sounds like issues he should be dealing with as part of a job HE wanted. Notice they never mention the several times he said he was ‘sick of it’ and ‘didn’t sign up this’. Strangely they left that out of their nomination.

But let’s break down what they said;

• Economy. I may sound old fashioned but the mayor’s job, per the charter, is to be the City Manager. He basically runs the day to day operations of the city and manages the city employees. That’s all he does (or should I say his Chief of Staff). He has very little control over the overall private economy of the city. Mind you, he could have had a major impact, he could have found an early strategy to make sure places like the packing plant and nursing homes were operating safely. He did not, which brings us to the next item.

• Covid. Sure, Paul has taken some measures over the past couple of months with pressure from business owners, citizens, medical professionals and the city council but it was too late. For the first 6-7 months this was raging in Sioux Falls he hid under his desk and took the Noem/Trump view of the virus, if we just ignore it, it will go away. While he has lead better then Noem, that leadership surely wasn’t trophy worthy.

• Civil unrest. During the riot(?) at the mall (where some middle schoolers were throwing rocks) Paul was in a bunker somewhere in a city building watching it play out on a large screen TV. While I am glad that this incident did not result in massive property damage and injuries or death, I’m not sure having the National Guard on your speed dial makes you a champion of quelling civil unrest. I was in the march earlier in the day, and later watched livestreamed on FB. It was peaceful, all over town. The lights went down and some latch key kids got bored and made a rather peaceful protest look bad. If anyone should be commended it should be the people who stood in front of the officers to protect them from rocks.

Has Paul done some good things? Sure, his administration has pushed for treating the city employees better (part of his job) and he has been a big public advocate for mentorship and health and wellbeing. But I’m sure the above mentioned stuff was a bit of a stretch.

The thing that concerns me the most about Paul and his supposed leadership is his blatant disregard for open and transparent government and his efforts in the dark rooms at city hall to totally dismantle what little is left. Is it some kind of a sick joke that the media would pick someone for this honor that HATES open government? I’m not laughing anymore.

To my surprise, but something I have been concerned about, at the beginning of the city council meeting tonight, Brekke put on the record her objection to a section of how public input is conducted.

Remember when the city council moved public input to the back of the meeting recently (a 4-5 vote with tie-breaker from person of the year Mayor TenHaken) they specifically said that members of the public could not talk about decisions that were made final by the council during the meeting.

This is a clear violation of citizens 1st Amendment rights, as Brekke pointed out in her objection it concerns prior restraint;

Basically Brekke points out that since decisions were already made during the meeting, voted on and final, the public has a right to address them and the government (city council or mayor) cannot limit them.

Even though Brekke’s opinion is NOT alone (there are many Supreme Court rulings about this) City Attorney Kooistra vehemently opposed her and basically told her she was wrong. It surprised me, actually astonished me how little the city attorney knows about 1st Amendment rights. From the mayor’s performance during the objection, it is clear he has no clue what 1st Amendment rights are, that has been blatantly obvious for a long time, but for an attorney with a law degree that has practiced in the military and in the private sector I would think he would be aware where the Supreme Court stands on this issue.

If Mr. Kooistra really wants to try out his Constitutional chops on this one, I would love to watch him get pummeled by a free speech attorney when someone from the public challenges this when the chair tries to shut them down for this ludicrous and unconstitutional rule violation. He may just get his day in the spotlight. Well, Mr. Kooistra, you know what Andy Warhol once said, “In the future, everyone will be world-famous for 15 minutes.” Good luck.

One of the definitions of inclusive is; including a great deal, or encompassing everything concerned.

The best way to build an inclusive community is getting that community involved with local government and the best way to do that is by letting the sunshine in.

Prophet Stoneless seems to be living in some fantasy world if he thinks he can continue his hatefest towards open and transparent government while building an inclusive community. They are counter productive to each other. Either he doesn’t understand how inclusivity works, is in denial, or is just plain ignorant.

Preach about diversity and inclusiveness all you want, it just won’t work in a closed government arena.

Once again, Attorney Tornow is diddling where he shouldn’t be diddling;

Complaints were submitted to the Rapid City city attorney regarding common council president Laura Armstrong’s involvement in the Facebook page, Caring Businesses of Rapid City, saying her actions violate city code.

“Code of conduct two says Rapid City officials, like council members, are to refrain at all times from discrimination or the dispensation of special privileges,” said Tornow. “I don’t know how you can have any more clear violation.”

First off, if this is a violation of city code (I don’t think it is) the complainers don’t have much of a legal leg to stand on. As an elected official your 1st Amendment rights are NOT stripped from you once you become elected. Sure, some would question ethics in this matter (though I would argue she is acting ethically by supporting a mask mandate that actually helps local businesses stay open) acting unethically is NOT illegal and as we saw in Sioux Falls, you can hardly be removed from office for it.

But more importantly she has a right granted from the highest law in the country to freedom of speech and if I was her I would counter sue these clowns for making a fuss over it.

It seems though the Rapid City, City Attorney did the right thing;

After the group submitted their complaints, a media outlet requested copies. Joel Landeen, the city’s attorney, says those were provided, much like complaints released in the past.

“If we choose not to disclose, or say we cannot comment on that because it’s confidential, then it makes it look like we’re trying to hide something or are not being transparent,” said Landeen. “Their argument is that the complaints should have remained confidential. I would point out that the last two complaints against aldermen Lisa Modrick and Jerry Right. The media became aware of both of those complaints almost simultaneously with them being filed.”

Tornow says the release of the complaints violates city process and the complaints included private information such as age and address. But Landeen says no one was required to share that information as part of the complaint process.

“I don’t think that the city did anything wrong in releasing the complaints,” said Landeen. “You have to put your name on a letter to the editor, I don’t think it’s unreasonable to expect to have to put your name on a complaint. As far as some of the other information, I can understand why people are concerned but I would point out that the form that contained all this information, those were not on city forms.”

Notice the last part of the last sentence, if you file a complaint to a government body on a piece of toilet paper, guess what, that just might appear in the media. When you are so stupid to complain about an elected official who is practicing their 1st Amendment rights to keep a community safe and economically secure, and file that complaint on unofficial forms, guess what, you spill gravy on your tie.

I have often argued that code enforcement complaints in Sioux Falls filed by residents (non-city employees) should be made public to the person the complaint is being filed against. I guarantee more transparency in code enforcement would make the problem disappear quite quickly. If you have a problem with your neighbor, bake them a pie and go have a chat. If you have a problem with your city councilor, buy them a cup of coffee and go have a chat.

I applaud the Rapid City, City Attorney on how he is handling the complaints. It’s going to be fun to watch this explode in the anti-maskers faces. They wouldn’t know the constitution or civil liberty rights if it hit them over the head with a baseball bat.

But a word of advice to the city councilor involved in this Trumpist-Noem fiasco, STAY OFF OF FACEBOOK!