Video Course Evaluation Form. Atty ID number for Pennsylvania: Name of Course You Just Watched

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1 Garden State CLE 21 Winthrp Rad Lawrenceville, New Jersey (609) fax Vide Curse Evaluatin Frm Attrney Name Atty ID number fr Pennsylvania: Name f Curse Yu Just Watched Please Circle the Apprpriate Answer Instructrs: Pr Satisfactry Gd Excellent Materials: Pr Satisfactry Gd Excellent CLE Rating: Pr Satisfactry Gd Excellent Required: When yu hear the bell sund, write dwn the secret wrd that appears n yur screen n this frm. Wrd #1 was: Wrd #2 was: Wrd #3 was: Wrd #4 was: What did yu like mst abut the seminar? What criticisms, if any, d yu have? I Certify that I watched, in its entirety, the abve-listed CLE Curse Signature Date Garden State CLE, 21 Winthrp Rd., Lawrenceville, NJ fax

2 GARDEN STATE CLE LESSON PLAN A 1.5 credit curse FREE DOWNLOAD LESSON PLAN AND EVALUATION INTRODUCTION TO FIRST AMENDMENT LITIGATION With F. Michael Daily, Jr., Esq. And featuring Rbert Ramsey, Senir Instructr Prgram descriptin This 1.5 credit CLE presentatin takes a lk at litigating a First Amendment case. These quintessential American legal issues ccur at an intersectin f federal & state law. Learn abut the current landscape lcally & federally in this specialized area f practicing law.

3 Garden State CLE 2 I. Intrductin F. Michael Daily, Jr., Esq. II. Type f cases/practice Fee shifting - If prevailing party, curt awards fees depending n time spent n case Sme cases are lng and drawn ut and thers nt Lcal rdinance easy t reslve quickly Mst ften gives municipal fficial unbridled authrity ver free speech, i.e. bardwalk perfrmers in Atlantic City required permit t get frm a municipal fficial and a particular level f insurance Mixture f cases mst current are based n internet blggers Internet blggers heightened status, curts refer t annymus pamphleteering as part f ur first amendment jurisprudence, smene is getting take t task by blggers and they want t find ut wh the blgger is t file a lawsuit NJ Calitin Against the Way in the Middle East v. J.M.B. Realty Crp, 138 NJ 326 (1994) free speech, leafleting case in shpping mall Cmmittee fr a Better Twin Rivers v. Twin Rivers Hme Owners Assciatin, 192 NJ 344 (2007) NJ caselaw starts with presumptin that annymus blgger is prtected and the persn wh wants discvery f wh the blgger is must meet certain requirements befre infrmatin is t be turned ver in litigatin Jurisdictin is where persn is being harmed where persn harmed resides General litigate in federal curt under federal cnstitutin smetimes NJ gives brader prtectins but that is mstly in criminal area as ppsed t free speech free speech under federal and NJ cnstitutin is the same NJ state plicy is t prvide enhanced prtectin t free speech issues Ustn v. Resrts Internatinal Htel, 89 NJ 163 (1982) and Princetn case (State v. Schmid, 84 NJ 535 (1980)) NJ curts say that even if private prperty, if it is the equivalent f the twn square, then free speech is ging t be prtected; business pen t public has duty t make available t all

4 Garden State CLE 3 members f the public NJ has gne further than federal gvernment and ther state in this area f the law Freedm f religin Hlden v. Bard f Educatin, 46 NJ 281 (1966) child did nt want t stand fr pledge f allegiance in public schl West Virginia State Bard f Educatin v. Barnette, 319 US 624 (1943) student wuld nt participate in pledge f allegiance curt said cannt be cmpelled t d that Practice mstly in federal curt - mst f the time yu will find a federal case that supprts the facts that yu have in yur case Out f circuit caselaw is nt binding but advisry and district curts will mst likely take int cnsideratin Plitical speech is given higher standard f prtectin III. Adult Entertainment Business Need resurces t fight rdinances that regulate these businesses Ptential fr damages prevents peple frm litigating when fighting permitting and business inspectin issues Barnes V. Glen Theatre, Inc., 501 US 560 (1991) part f first amendment prtectin uter limits f first amendment prtectin Regulatins that address adverse secndary effects f adult businesses are cntent neutral, even thugh regulatins by their terms say that they apply t that type f business Zning issues state statute, NJSA 2C:34-7 Sexually riented business; lcatin, building requirements; penalty. Unless a municipality pts ut f it, yu cannt pen an adult business (specific definitin) within 500 feet f anther such business, church, playgrund, residence, etc. Result is that nly place t have such a business is where there is an industrial park withut custmers US Supreme Curt has said right f expressin nt right t make a prfit Plitical issue but ill advised Cherry Hill case twn lst $500,000 and had t pay business wner Des the majrity f American citizens care abut this issue??

5 Garden State CLE 4 Classic adult bkstre place cannt make mney anymre because f internet nly places surviving have live entertainment can be strictly regulated Ben Rich Trading, Inc. v. City f Vineland, 126 F3d 155 (3 rd Cir. 1997) twn had passed an rdinance that prhibited drs n cnversatin bths Live entertainment statutes can put in distance requirement requiring wmen t be a particular distance between custmers and dancers (2 separate US Supreme Curt cases) N alchl licenses if there is cmplete nudity in entertainment establishments when liqur cmes invlved n lnger 1 st amendment issue Alchl is licensing f ptentially dangerus substance is cmpelling just interest f the gvernment that can trump ther issues invlved In re Thmpsn, 197 NJ 464 (2009) defendant went t Russia t fulfill sexual fantasy and then prsecuted upn his return; able t find smene n the internet that will cater t any sexual fantasy N prblem with law enfrcement addressing biggest issue f child prngraphy issue technlgy in hands f gvernment t scan messages lking fr particular wrds and phrases gives gvernment pwerful tls fr prsecutin f these types f ffenses utside f 1 st amendment prtectin Internet makes cmmunicatin easier and peple can cnnect in ways that are vluntary and lawful peple are pening themselves up t embarrassment, but nt necessarily gvernments business t get invlved What abut when images f children are nt actually human beings 1 st amendment prtectin? There is an argument t be made Internet has changed adult entertainment industry Acceptance f these types f businesses changes ver time Tinker v. Des Mines Independent Cmmunity Schl District, 393 US 503 (1969) children were wearing arm bands during schl in supprt f war, curt said that children d nt shed cnstitutinal rights at schlhuse dr Last time this issue was wn by the petitiner because maintaining rder and decrum in schls has becme mre imprtant

6 Garden State CLE 5 Cannt d anything abut private schls because nt state actrs IV. Overview f practice Initially criminal in nature then becmes 1 st amendment issue Preacher case initially charged with rdinance withut permit fr amplifier and then charged with tumultuus behavir (imprper behavir) n prf f intent in this case and set f facts Preacher using amplifier Manasquan if carries sund within a certain number f feet, then must have permit; defense demnstrated that gvernment failed t prve intent t cause annyance frm that type f activity Free speech issues freedm f religin is part f free speech amendment freedm f expressin is real issue State v. Stampne, 341 NJ Super 247 (App. Div. 2001) cnstitutinal challenge t imprper behavir statute because it des nt define what tumultuus behavir means Civil actin fr deprivatin f rights, 32 USC 1983 Entitled t punitive damages with a single digit multiplier t actual damages Law is that yu are nly entitled t cmpensatry damages fr actual injuries and simply academic damages because f breach f cnstitutinal right is nt sufficient If n cmpensatry damages, and rights were vilated, nminal judgment amunt f $1 but NJ case says nminal damages then entitled t punitive damages State r federal curt?? NJ has civil rights actin that purprts the same t be as 1983 hwever if lk at NJ act it seems t say that in rder t qualify as plaintiff vilatin f rights has t be accmpanied by threats t d harm and threat must be mre than de minimus significance NJ act is wrd fr wrd ff f Massachusetts act (G.L. c.12, ss.ii H, II I) Mass curts say that must have sme kind f threat, act in respnse t bussing f students in Suth Bstn s must have

7 Garden State CLE 6 additinal element f threatening unlawful actins against persn trying t exercise rights In mst cases dn t have 1983 actin under NJ law n NJ case that indicates what is curt s psitin n this issue In federal enrmus bdy f caselaw t rely n Free exercise r free speech?? Depends n the case Teaneck case rabbi wh left anther cngregatin and began having prayer grup, expanded huse fr prayer grup with a prper permit given by twn, neighbrs claimed impermissible use n variance t have religius institutin Desist rder issue by twn Issue is free practice f religin in hme Arizna case prayer grup in hme, peple, desist rder and arrested, curt will nt grant habeas crpus relief Establishment clause cases Medfrd 1 st grade in twn, teacher rule reward fr being successful in reading can bring in any bk frm hme, child brings in children s bible stries and he wanted t read an inncuus stry, teacher des nt allw, mther cmplains, principal says maybe child shuld nt be in public schl, US Supreme Curt decides nt t grant cert., argument was if I let him read the bible then establishing religin in schl Mst issues cntent based as ppsed t cnduct based Mainstream issues are nt the prblem Drive by disability case peple with disabilities will drive arund and chse a business t g int t see hw they were treated with the intent t sue the cmpany Whitesbr Baptist Church can t lk at subjective mtivatins, must lk at what is the speech, is it fighting wrds unlawful etc., whether peple are ding t aggravate thers it is unclear Princetn case:

8 Garden State CLE 7 witness was persn wh cmplained, witness said she did nt bject t what they were saying but bjected t level f the nise Plitical dnatins Citizens United v. Federal Electin Cmmissin, 558 US 310 (2010) Prtective speech Ability f crpratins t impact electins thrugh dnatins (exercising 1 st amendment rights) Cntrlling public pinin if yu can capture a particular grup/blck f vters where they are ging t supprt yu 100%, then yu win an electin because differential in the rest f the vters is nt big enugh t vercme 100% blck f vters Sme twns in NJ give gvernmental psitins t peple then end up getting supprters that can cntrl the electins this is a bigger issue frm the plitical cntributins 1 st amendment speech based n plitics is entitled t higher prtectins plitical and religius speech Petitin t redress grievances issue crrespndence frm jail regarding cnditins in the jail r bail were nt being addressed by the curt until the case was schedule, 1 st amendment issue? When we deal with prisners the central inquiry n the gvernments side is what is necessary fr the gd rder f the prisn Petitins have nthing t d with cntrlling prisners S interest f jailers in nt seeing that grievances are addressed prperly Prisners were denied access t gvernment t even had relief heard issue f right t petitin because there are cases that say right t petitin the gvernment includes the right t g t curt, t bring claims Prisn issues Balance with atmsphere f discipline r security Persn was terminated because he was having discussin with prisners abut religin that was his allegatin State was nt ding his jb and the religius discussins were what he was ding instead f his jb

9 Garden State CLE 8 1 st amendment rights f public emplyees Garcetti v. Ceballs, 547 US 410 (2006) grumbling abut things related t yur wrk is nt a 1 st amendment issue- nt prtected cnduct, emplyee cannt becme a hindrance by using 1 st amendment, if yu are cmplaining that yur emplyer is ding smething against public plicy r harmful t public yu have prtectin under whistleblwer law, dn t need t invlve 1 st amendment/cnstitutinal issues Only type f case nw, i.e. teacher went t Bard f Ed meeting and spke abut the way the system was running and was later fired; argument is based n being a public citizen nt as fficer, teacher, clerk V. Advice t yung attrneys Want this type f wrk t be part f yur practice, nt the nly thing Prcedural hurdles in 1983 actins lts f pitfalls in this type f wrk Organizatins that are lking fr peple willing t dnate time ( Rutherfrd, ACLU ) Unppular clients and causes ideas far remved frm mainstream yu have t be brave Being a lawyer in many areas yu have t have a thick skin and representing clients wh are nt exactly belved What happens t ne persn can hurt all f us when we talk abut cnstitutinal rights Time place and manner restrictins that are in place nw wuld have restricted a number f parts f ur histry, i.e. Martin Luther King, civil rights marches The cases have develped this way frm cases interpreting adult entertainment but it has been interpreted t effect everyne