PA Stake President Charged with Felony Under Mandatory Reporting Law

[helix]

7 hours ago, Stargazer said:

These mere amendments are, in the opinion of many, sacred. And some hold that abrogating any of them by the federal government is a very, very serious matter.

Yes. And as quoted earlier, one Supreme Court justice said the "If there is any fixed star in our constitutional constellation", it's the part of the First Amendment that prohibits coerced religion or coerced speech.

The First Amendment is not just any mere amendment. It's perhaps the most important section in the entire Constitution, and calling it sacred is apt. We should not casually hand-wave it away or consider it a nuisance.

Edited February 8, 2024 by helix

[Benjamin McGuire]

19 hours ago, smac97 said:

By "we" I assume you mean the State.  Would that be correct?

No. By "we" I mean "we the people". The state is our mechanism for building it out, providing oversight, and all of that, but, without the political willpower of the population, no change will happen. This may be splitting hairs a little bit - but I think it is a relevant distinction.

19 hours ago, smac97 said:

by Michael Tanner:

Look, I have no interest in debating the politics here in this forum with you or with a libertarian by proxy. This is not the forum for that. And I am confident that our political views are different enough that there won't be any progress on that front. My real response to all of this is that if our goal is to look at history as a model, then we should apply the same sort of approach to your suggestion that we should use a religious framework to help moderate abuse problems. Let's look at the past and see how that has worked out ...

All of these issues are closely connected to abuse. This doesn't mean that they are causes - it just means that there are connections. To the extent of whether or not its feasible, it is largely about what we prioritize (as a population and as a state). I don't think that arguing about that feasibility is going to get anywhere here, just as I am going to try and avoid questioning the feasibility of your suggestion on managing abuse. So perhaps a straight up question is in order. All of the fiscal issues that you want to raise aside, if we could reduce these other factors, do you think it would reduce abuse?

[Benjamin McGuire]

17 hours ago, Stargazer said:

Are you saying that because the First Amendment is merely an amendment that it doesn't have the same status as the original body of the Constitution, which is Articles 1 thru 7?

No. I was pointing out that the Constitution is a document that can be changed - and we know this because it has been changed. It leads into the questions about rights more generally, and the distinction between human and civil rights more narrowly. That Americans are willing to change the constitution reflects our evolving understanding of all of these rights.

[Benjamin McGuire]

12 hours ago, helix said:

First I asked where the Constitution allowed this. That request was ignored.

It wasn't ignored. You keep conflating things. I'll try to provide a brief overview.

The Supreme Court has determined that for compelled speech to violate the first amendment, it must be a compelled expression of belief. West Virginia State Board of Education v. Barnette. The court has determined that this does not apply when the state requires the reporting of fact. So, the arguments against compelled speech in terms of government reporting are generally found to be invalid - because they are the reporting of fact. An income tax return isn't compelled speech - not because it isn't compelled but because it isn't speech in this sense.

In a professional or commercial context, this can be moved further along the scale. Zauderer v. Office of Disc. Counsel for example. The idea is that even if there is a reason why the forced speech would require a recognition of some belief or value, if it was reasonably related to an interest of the state, and was purely factual. This leads to the reason why we can compel cigarettes to have a surgeon general's warning on them.

In the context of mandatory reporting, this idea is what is used by the courts to recognize the idea that mandatory reporting laws don't (in general terms) violate the first amendment. Speech (in the legal sense) is not being compelled any more than it is with tax filings or other required reporting to the state. As long as the report is factual (which to be clear means that the person reporting it is describing what they saw or experienced), that is as far as it goes.

All of this applies to the issue of free speech for anyone. The question of religion is a different question. The primary text for this issue is Employment Division v. Smith. The standard there is that laws are allowed to create burdens on the practice of religion if they are religiously neutral and generally applicable - what that last bit means is that they burden religion incidentally rather than intentionally. I went over this idea in some detail yesterday. As long as there is no effort to target religion, and that there is a reasonable question for the compelled speech (and further, as long as the law requires what would be termed as the least intrusive means to achieve that end), then the law passes constitutional muster. This hasn't been tested by the court yet. Part of that is because the laws regarding mandatory reporting for clergy as relatively new. Partly this is because it is hard to get a good test case for this issue. Why is that? Because the case in the OP occurs in a state (Penn) where there is an exception carved out for clergy-penitent communications. So a challenge would need to come in a context where such a exception doesn't exist. It would need to come from a religious figure who could make a clear argument for interference in religion. LDS leaders have a much harder time making such an argument than a Catholic would. In the ideal situation, it would need to occur within a religious context where such a confession didn't trigger actions on the part of the Church. Again, Catholicism has a stronger case there than does Mormonism, where such a confession can trigger church courts, mandatory record annotations, and sequences of events that necessitate divulging that information to a broader audience than the penitent ever intended.

This about sums it up. Did you need more detail?

12 hours ago, helix said:

I'm being persistent only because this is the cornerstone of this discussion. Can the government compel clergies to speak as the government demands, and jail them if they don't speak? The First Amendment overwhelmingly says no, you can't do that. Vague suggestions are floated about exemptions to the First Amendment, but none of them are remotely close to applying here.

You aren't just being persistent, you are consistently trying to make the issue muddier than it has to be.

The government can compel clergyman to speak as the government demands in making certain financial statements. The government can also jail them if they don't speak. This is historically true regardless of what you think the First Amendment says. So you have this problem. You are speaking using very broad language about very nuanced ideas. This is why I am going to continue to claim that you are conflating the issues here.

12 hours ago, helix said:

Sacrificing people is speech? Huh? And telling others they can't sacrifice people is compelled speech?  What!?

It's the practice of religion. It could be speech. I am using extremes so that it is clear to everyone that your universal statements are problematic. The First Amendment does not give unfettered rights to say and do anything you want to in the name of free speech or in the name of religious belief and practice. There are problems when rights come into conflict with each other.

12 hours ago, helix said:

We need to define speech. Speech isn't taxes, driving, employment disclosures, arson, theft, murder, or human sacrifice. Speech is what someone says, writes, reads, prays, protests, or refuses to say. This speech is fiercely protected by the First Amendment and is a bedrock principle of both human rights and civil rights. The First Amendment has a handful of very careful and narrow exceptions, specifically: obscene public sexual deviancy, defamation, spoken fraud, incitement to imminent lawless action, solicitations for help in committing crimes, and child pornography. In all of those cases the individual is the one actively involved in directly harming another or causing great offense. None of these exceptions allow compelled speech for a third party.

And yet, people have tried to argue against taxes on the basis that it is indeed speech. The Supreme Court has been relatively clear on what it views as speech - especially in the context of compelling speech. And the challenge that you have is this distinction - fact is not expressive of belief. The reporting of fact cannot be considered compelled speech in the same way that reciting the pledge of allegiance can be. The Supreme Court has made it clear that there is nothing wrong with requiring a tobacco company to put a label on each pack of cigarettes with a warning on it (despite their deep desires not to). In 2012 (I think), a shift to try and make the warning more graphic was shot down by the courts as it stopped being purely information - it became protected speech. Compelling purely informational speech when there is a governmental interest in the factual content of that speech isn't protected by the first amendment. So it isn't this issue of harm that is central to the question. The challenge that you have in the definition that you use is that abuse cases can involve harm. Abuse laws do come in a context of competing rights. Like the issue with cigarettes, there is little question that the state has an interest in preventing harm to children (and vulnerable adults). So requiring the disclosure of information in the context of preventing abuse seems to be a compelling reason to allow these laws to continue - and so far - since they have been in existence now for 50 years, the courts have agreed.

13 hours ago, helix said:

Some of this Court’s leading First Amendment precedents have established the principle that freedom of speech prohibits the government from telling people what they must say.

Google isn't your friend. This quote from Roberts's decision in Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47 (2006) and has this shortly after the part you quote:

Quote

Compelling a law school that sends scheduling e-mails for other recruiters to send one for a military recruiter is simply not the same as forcing a student to pledge allegiance, or forcing a Jehovah’s Witness to display the motto “Live Free or Die,” and it trivializes the freedom protected in Barnette and Wooley to suggest that it is.

Roberts goes on to say that the compelled speech issues occur in situations where "an individual must personally speak the government’s message." But when we get to mandatory reports, there is no governmental message that they are forced to speak. They are making a factual report of what they experienced. So we run into this issue where you don't seem to be understanding what is meant by free speech.

Likewise, in your second quote, Burger adds this:

Quote

Here, as in Barnette, we are faced with a state measure which forces an individual, as part of his daily life -- indeed, constantly while his automobile is in public view -- to be an instrument for fostering public adherence to an ideological point of view he finds unacceptable.

There is nothing in a mandatory reporting (just as there is nothing in filing a tax return) that forces an individual "to be an instrument for fostering the public adherence to an ideological point of view he finds unacceptable". This is why something like the mandatory reporting isn't considered speech in the way that you suggest that it is. The State isn't forcing someone to speak an ideological view on their behalf to others.

And from Barnette, which is the seat of all of this - you quote this:

Quote

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein,

But we can say with certainty that a mandatory reporter's report is not the state prescribing what is "orthodox in politics, nationalism, religion or other matters of opinion" and it isn't forcing "citizens to confess by word or act their faith therein".

All of these things that you quote are relevant to free speech - to inappropriately compelled speech - but you haven't made a case that mandatory reporting fits these definitions any more than a tax filing.

14 hours ago, helix said:

Human sacrifice is not communication. Preventing human sacrifice of another is not government compelled speech. I also can't believe I just typed that out.

Human sacrifice could be a religious act. Perhaps you forget that the first amendment protects free speech and it protects the freedom of religion. You get both in there. The religious argument is far more interesting (to the courts) than is the (non-existent) free speech issue here. It is clear that making a clergyman a mandatory reporter of communication from a confessional provides (at least for Catholics) a clear infringement on the exercise of religion. The question before the courts then is whether or not that infringement meets the criteria that have historically been set out that would allow such an infringement.

14 hours ago, helix said:

This sounds like support for the idea. If you were a legislator, and a bill came before you for a vote to make religious clergy mandatory reporters, inside and outside confessionals, knowing full well this would make an 800 year core Catholic belief and sacrament illegal, it sounds like you would vote yes.

Here we go with the conflation again.

There is no religious mandate that would prevent a clergy from being a mandatory reporter of confessions of abuse that occur outside the confessional. So stop trying to flatten this all and make it the same thing.

On the question of the other, I would say this - my aim in this would never be about Catholicism. It would be a question of all religions at the same time - if I could be convinced that across the board, there were sufficient instances of confessions of current and ongoing child abuse made to religious clergy in the context of confession, then I would be open to such legislation - in that it puts the safety of children and their human right to live free from abuse over the religious rights of others.

And of course, if this means that people stop confessing, then clearly it will stop being an issue for the Catholic clergy, won't it ...

In any case, stop the conflation, and stop trying to put words into my mouth.

14 hours ago, helix said:

I do not know the exact details why this stake president was charged. Sometimes the law takes a while to sort things out and sometimes human beings enforcing the law get it wrong. In the recent Arizona case, priest-penitent privilege was rejected by the first judge, and then upheld by later judges upon appeal. I don't even know if the DA's charge was political and/or bad. I'm as curious as many others here as to when and how the stake president learned of abuse from 20 years prior. But given that the Constitution doesn't grant the government the right to compel average citizens to report any crime we witness, I would love to see this case go to the Supreme Court. Just so we can finally get common sense written in stone, that these kinds of laws are grossly incompatible with civil rights and the First Amendment of the United States Constitution.

And will you be disappointed if the justices disagree with you and write that because of the interest of the state in protecting the rights of the victims, that this is in fact a constitutional principle?

[helix]

 

In the final episode of Seinfeld, the group is arrested for not being Good Samaritans.

Cop: "Alright, hold it right there. You're under arrest."
Seinfeld: "Under arrest, what for?"
Cop: "Article 223-7 of the Latham County Penal Code"
Elaine: "What? No, We didn't do anything"
Cop: "That's exactly right, the law requires you to help or assist anyone in danger"

This comedy series mocked a bad concept for law. That concept is relevant here. I want to first address the core fault in your legal theory.

16 hours ago, Benjamin McGuire said:

The court has determined that this does not apply when the state requires the reporting of fact. So, the arguments against compelled speech in terms of government reporting are generally found to be invalid - because they are the reporting of fact....Speech (in the legal sense) is not being compelled any more than it is with tax filings or other required reporting to the state. As long as the report is factual (which to be clear means that the person reporting it is describing what they saw or experienced), that is as far as it goes.

This statement is central to your case, and it is not true. Private memories are not like tax figures. And compelled speech is not just forced speech you disagree with, it's broad enough to mean the government can't stop you and demand "You must tell me your opinion on something you agree with, or else!"

And despite asserting courts determined government has a right to your memories, you still  haven't cited any Supreme Court case where the government can compel a private citizen to report conversations they overhear from strangers in their private day-to-day conversations. Courts have not granted the government the rights to private citizens' private facts. Because otherwise, this logic prevails:

Private memories are like taxes theory:
1) The government can compel your privately known facts so long as it feels it can provide sufficient benefits for others. (Forced reporting of facts can even override one's core religious beliefs so long as the government can argue its importance.)
2) One type of fact are things learned by overhearing another's speech. Another type of fact are crimes you witnessed another make. A bonus is that you aren't reporting your own private opinions or your own private crimes, just other facts. So privacy, forcing opinions you don't share, and self-incrimination aren't issues.
3) Refusal to report these facts to the government can be specified in law, with allowable penalties of felonies and years in prison.

By this logic, the government can compel you to report conversations you overheard about child abuse. Also any other past crime you heard from another. But also by this logic the government can compel you to report private conversations you had with your friends. Because conversations are facts, and those facts can be used to prevent future harm. The government need only justify the broad societal benefit of reducing harm to others by demonstrating how it can use that information to locate and arrest more criminals. Thus, the government can bang on your front door, demand to know what you friends told you, (as these are facts), and if you don't give them, you can be charged with a penalty and face years in prison.

Of course, this is silly. Government doesn't work this way. Because the root error in this logic is in #1. The government cannot compel disclosure of all facts it desires. The Constitution states this. The First Amendment vigorously protects non-speech in broad, broad swaths, and the Supreme Court routinely emphasizes how broad this important right is. But the Constitution and subsequent case law explicitly makes some exceptions: facts related to commerce, taxes, census, certain court testimony, campaign financing, lobbying disclosure, draft registrations, seizure of evidence from a warrant, or situations of immediate harm of parties in legal relationships with one another. If an exception is not crystal clear in the Constitution, the government can't compel that memory from you as a private citizen. So from both ends, general compelled facts reporting for private citizens is expressly prohibited.

But while not explicitly stated, you seem to be arguing for a different approach. Much like the Seinfeld finale.

Bad Samaritan theory:

1) Members of society have an inherent moral duty to be our brother's keeper when our brother is in great distress
2) The government can require any private adult to help someone in distress by providing aid, physically interjecting, and/or reporting crimes to the government
3) The government can penalize private adults who are "Bad Samaritans"

A handful states have various levels of Bad Samaritan laws (usually created in response to an outrage-of-the-month). They range from requiring reporting crimes witnessed, reporting crimes overheard, reporting any crime you believe occurred at any time, rendering physical aid to people in danger, and informing the government of people actively in distress.

These have been tested in courts a few times, but they only work in very narrow scopes:

• If the parties are in a special relationship, like a parent/child relationship, doctor/patient, or employer/employee relationship, AND the activity threatens immediate harm, then Bad Samaritan laws are constitutional and can apply. For example, in Ohio's State v Wardlow (1981), a mother was penalized for not coming to aid her daughter who has been repeatedly recently raped, and had high probability of it happening again.
• Bystanders have been exempted from Bad Samaritan laws. In Vermont's State v Joyce, a father was beating his son while others watched. A bystander was arrested for not providing aid to the son. The court ruled the bystander can't be penalized under Bad Samaritan laws for this.
• The prior case also noted: "As a general rule, there is no duty under the common law to aid a person who is in danger. Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959); Reynolds v. Nichols, 276 Or. 597, 556 P.2d 102 (1976); Restatement (Second) of Torts § 314 (1965)."
• Even in immediate physical danger of a bystander, a court found you need not do anything: “With purely moral obligations the law does not deal. . . . Suppose A., standing close by a railroad, sees a two year old babe on the track, and a car approaching. He can easily rescue the child, with entire safety to himself, and the instincts of humanity require him to do so. If he does not, he may, perhaps, justly be styled a ruthless savage and a moral monster; but he is not liable in damages for the child’s injury . . . .” (Buch v. Amory Mfg. Co., 1898)
• The expanded scope of Bad Samaritan laws falls apart under court scrutiny.

The prior case law of Bad Samaritan laws means that a bystander, who heard another person was abused 20 years prior, doesn't fit the immediate danger test, and doesn't fit the special relationship test.

Now you will find a few far-left academics who advocate for more Bad Samaritan laws. Their theories advocate for near unlimited scope, that any current or past crime can be required reported to the government, by every adult, at any time, and all adults should be punished if they don't. But courts are quite skeptical in accepting these theories and laws.

Finally, these comments about speech definitions are hitting bewildering levels. It's not Earth vs Mars levels of difference, it's more like Earth vs Alice in Wonderland levels:

16 hours ago, Benjamin McGuire said:

This leads to the reason why we can compel cigarettes to have a surgeon general's warning on them.

Health warnings on a cigarette corporation's commercial product have nothing to do private speech. I am discussing the right of a private citizen to not speak to the government if he or she doesn't want to. This is unrelated to the Constitution's Commerce Clause.

16 hours ago, Benjamin McGuire said:

It could be speech.

No, human sacrifice is not speech. Telling someone they can't sacrifice another human isn't compelled speech. This is such a bizarre argument to double-down on.

If we can't even understand what speech is, then we're not going to get anywhere. It's tiresome to attempt a conversation where even simple words can't share meaning.

Edited February 9, 2024 by helix

[Benjamin McGuire]

6 hours ago, helix said:

This statement is central to your case, and it is not true. Private memories are not like tax figures. And compelled speech is not just forced speech you disagree with, it's broad enough to mean the government can't stop you and demand "You must tell me your opinion on something you agree with, or else!"

See this is where you not only get it wrong, but we can see in the court records how you get it wrong.

Consider the language in this decision:

Quote

Specifically, we find no merit to the argument that requiring compliance with the statute might somehow interfere with the mandatory reporter's right of free speech by compelling him to espouse a viewpoint with which he may not wish to be associated. The mandatory reporting requirement of the child abuse statute compels no "expression" in the sense reflected in Wooley v. Maynard, 430 U.S. 705, 715, 97 S. Ct. 1428, 1435, 51 L. Ed. 2d 752 (1977), in which it was held that the first amendment prohibits laws that require an individual "to be an instrument for fostering public adherence to an ideological point of view he finds unacceptable." The statute does not compel the dissemination of an "ideological point of view," but only mandates the reporting of information a requirement not altogether dissimilar from that imposed by the Internal Revenue Code. Moreover, a professional is free to include in a report that although the report is mandated because the reporter has "reason to believe" that a child has been abused, the reporter does not hold a personal belief that the child has been physically or sexually abused. Cf. PruneYard Shopping Center v. Robins, 447 U.S. 74, 87, 100 S. Ct. 2035, 2044, 64 L. Ed. 2d 741 (1980).

I can provide other examples if you want - it only takes time. What I want to know is if you can you see the distinction? While you may not agree with it, this is the standard that has been used in these cases for a long time. This isn't particularly specific to the case of abuse mandatory reporting but of all sorts of mandatory reporting. I don't really want to get into the problem of your assertion that the government can't ask you for you to express your own opinion - because, although that would be an interesting discussion on its own, its not relevant here. Mandatory reporters aren't being asked to report their opinions. They are being asked to report something factual. That is, while it may be that their opinion is important in determining that there is a substantial potential for abuse represented in their observations, they aren't reporting that opinion, but the observations. More often, if someone comes to a mandatory reporter and says that person X has abused them, they become obligated to report that claim of abuse - so that it can be investigated. Mandatory reporters are not meant to be agents of investigation or agents of law enforcement. And this is the position that is generally held by the courts.

7 hours ago, helix said:

And despite asserting courts determined government has a right to your memories, you still  haven't cited any Supreme Court case where the government can compel a private citizen to report conversations they overhear from strangers in their private day-to-day conversations. Courts have not granted the government the rights to private citizens' private facts.

Once again, you are conflating things, aren't you. You are broadening the scope of the subject to the point where it is meaningless. Mandatory reporting laws are generally quite clear about what they cover - and there isn't a single mandatory reporting law that would "compel a private citizen to report conversations they overhear from strangers in their private day-to-day conversations. Courts have not granted the government to private citizens' private facts." I don't disagree with you on this point. There is, however, fairly extensive case law that explains exactly when and what sort of conversations might trigger such mandatory reporting. The courts have generally looked at the historical laws making professionals mandatory reporters and determined - based on the intent they divined from the law - whether or not this was meant to be a narrow requirement (in force only when they were told of the abuse in their professional context) or broad (required in all contexts). The distinction always comes through the intent of the law. The thing is, once you expand the laws to include everyone, that distinction disappears. And as I noted above, the courts have held that there isn't any significant difference between requiring this sort of reporting and requiring you to file your taxes. Why don't you provide us with some sort of indication that the courts are even remotely sympathetic to your point of view here.

And hey, if it was such a problem, then why do we have cases like Ohio v. Clark. If the Supreme Court were open to the argument you make, you would think it would be the low hanging fruit. Instead, the arguments go everywhere but towards that issue. Perhaps a more interesting case was Maryland v. Sewell. The most important evidence in the case was a series of text messages between the abuser and his wife. His wife was a mandatory reporter. He claimed that the texts couldn't be used because of the privilege of husband and wife communications. You would think it wouldn't get any more private than that, right? And yet, from the decision:

Quote

we agree with the State that, in such a circumstance, such communication is not confidential, and therefore not excluded by CJP § 9-105, the confidential marital communications privilege.

The problem isn't just about First Amendment issues - its the fact (as I keep pointing out) that there are competing interests held by the state and which have to be given consideration and weighed against abrogation of rights. And usually, when we are dealing with abuse, the victims rights are going to be the winner. Why? Because they are injured more when the abuse isn't stopped or prevented than the person is who is required to make the report.

8 hours ago, helix said:

By this logic, the government can compel you to report conversations you overheard about child abuse. Also any other past crime you heard from another. But also by this logic the government can compel you to report private conversations you had with your friends. Because conversations are facts, and those facts can be used to prevent future harm. The government need only justify the broad societal benefit of reducing harm to others by demonstrating how it can use that information to locate and arrest more criminals. Thus, the government can bang on your front door, demand to know what you friends told you, (as these are facts), and if you don't give them, you can be charged with a penalty and face years in prison.

I am not understanding the point you are trying to make here. It is clear that the government can force you to describe conversations you hear (or had). You seem to be agreeing with this. And you agree that as long as they can show a significant enough interest, they are allowed to do so. So far so good, right? And its clear that for decades now, the government has argued that preventing or stopping abuse is a sufficient interest for them to compel speech in terms of mandatory reporting. What am I missing here (apart from the attempt to expand this to everything else). Unless of course, you are suggesting that none of the rest of your comments are true. Here in Michigan, not answering a witness subpoena can get you 12 months. And the legality of subpoenas is widely accepted.

8 hours ago, helix said:

Of course, this is silly. Government doesn't work this way.

Oh wait, I guess you were trying to discredit the idea. I think that you are really quite ignorant of the law and how it works.

8 hours ago, helix said:

The government cannot compel disclosure of all facts it desires.

And here we go again. I am not asserting that the government can do this. In fact, I am only asserting that the government can compel disclosure of the facts that it believes are necessary for the interests of the government and the population of the state (and which it can convince the judicial system are necessary). And in this case, there is a clear case history that the courts are on their side (in terms of the broad application of mandatory reporting). The courts may well narrow this in terms of the conflict with religious freedom - but they haven't shown any real interest in recent years over the issue of free speech.

8 hours ago, helix said:

The Constitution states this. The First Amendment vigorously protects non-speech in broad, broad swaths, and the Supreme Court routinely emphasizes how broad this important right is.

But the current view is that it has to be speech - and the view (as I show above) is that certain types of communication are not speech - are not expressive in the protected sort of way. I don't think that there is a way for you demonstrate otherwise - other than simply providing your own personal opinion - because the courts are not going to be friendly to the specific argument you are trying to raise.

8 hours ago, helix said:

Health warnings on a cigarette corporation's commercial product have nothing to do private speech. I am discussing the right of a private citizen to not speak to the government if he or she doesn't want to. This is unrelated to the Constitution's Commerce Clause.

Health care warnings were challenged in a First Amendment basis, not on the Commerce Clause.

8 hours ago, helix said:

No, human sacrifice is not speech. Telling someone they can't sacrifice another human isn't compelled speech. This is such a bizarre argument to double-down on.

For the record, you keep providing opinions that don't have any basis in any reality I know of. Animal Sacrifice is protected according to the Supreme Court under the First Amendment. The same sort of reasoning could clearly be made in terms of human sacrifice - but, the difference would be that while the courts argued that there wasn't a compelling enough interest for the government to limit religious practice in the case of animal sacrifice, they would certainly agree that the government had a sufficiently compelling interest in the case of human sacrifice. This isn't about compelled anything (and I haven't used it in that context). What I have been trying to illustrate with this point is that the government is certainly able (and willing) to place limits on religious expression if the interests of the government warrant that limit. The point is that the First Amendment is not some sort of unlimited freedom. You just seem to have a hard time understanding this.

[smac97]

1 hour ago, Benjamin McGuire said:

See this is where you not only get it wrong, but we can see in the court records how you get it wrong.

Consider the language in this decision:

I think Ben has the better argument here (as to the state of the law, that is), though the overall issue of "mandatory reporting" statutes as applied to, functionally, everyone (as opposed to specified categories of (usually licensed) persons) is unsettled.  See, e.g., here:

Quote

While different observers may have different views on the public policy wisdom of such laws, one area in which there is little debate is that duty to report laws can be constitutionally problematic. More specifically, and chiefly, the First Amendment to the U.S. Constitution restricts and regulates government efforts to compel speech.  

It is well-settled that freedom of speech encompasses both “the decision of both what to say and what not to say.” 10 Thus, the First Amendment protects against state action “both the right to speak freely and the right to refrain from speaking at all.” 11 The U.S. Supreme Court, however, has distinguished between compelled speech that forces the speaker to convey ideas as distinguished from requirements that the speaker provide mere facts, with the latter raising less significant First Amendment concerns.12  

Moving from constitutional theory to application, we note that even though the concept of compelling companies and individuals to report crime is not of recent vintage, the law in this area as applied to duties to report crime is unsettled.13 In some contexts, courts have criticized efforts at mandatory criminal reporting. For example, the Second Circuit allowed a Section 1983 claim to go forward that was predicated on a prison’s alleged attempt to compel, through solitary confinement, an injured inmate to report what the prison officials believed to be an assault.14 That case, however, was limited to compulsion of an individual (rather than a company or registered organization) and presented questions involving not only the penalty of solitary confinement, but also whether the requested testimony was true. Importantly, the court was also concerned about the inmate’s safety, especially in light of the prison’s request that he engage in ongoing cooperation. 15  

On the other hand, and in less fraught circumstances, state courts have repeatedly upheld their state’s limited criminal reporting statutes against First Amendment challenges. For example, the Minnesota Supreme Court, considering a First Amendment challenge, upheld the conviction of a school principal for failing to report under a statute that requires, among other things, certain licensed professional to report child abuse. 16  

Whatever eventual consensus emerges on criminally punishing individuals for failing to report crimes, for our purposes it is safe to say that companies and registered organizations will have fewer First Amendment arguments to make against such laws. Apart from companies and organizations obviously not being subject to incarceration or physical threat, they are also typically regulated or licensed, which can carry with it the obligation to report certain information to government or third-parties.17 Moreover, companies may be found to consent to such obligations when they incorporate or register to do business in states with such obligations already in place.18 

This article also provides a good summary of this issue: Compelled Speech: Overview

I dislike expanded mandatory reporting statutes for a variety of reasons, including First Amendment ones.  However, I suspect these statutes would survive constitutional scrutiny by SCOTUS.  

Thanks,

-Smac

Edited February 9, 2024 by smac97

[Stargazer]

On 2/8/2024 at 4:08 PM, Benjamin McGuire said:

No. I was pointing out that the Constitution is a document that can be changed - and we know this because it has been changed. It leads into the questions about rights more generally, and the distinction between human and civil rights more narrowly. That Americans are willing to change the constitution reflects our evolving understanding of all of these rights.

Yes, I agree. There's probably areas of slop in Articles 1 thru VII that could bear to be adjusted.

But there are certain parts of the Constitution that we dare not diminish. In particular, the Bill of Rights.

[smac97]

An update: Harrisburg LDS Church leader won’t face failure to report abuse charge

Quote

The Dauphin County District Attorney’s office says they’ve withdrawn the criminal complaint against Harrisburg lobbyist and LDS church leader Rhett Hintze after alleging he failed to report child sex assault allegations against another church leader.

The District Attorney’s office says the prosecution “was not in the public interest” and the now-adult victims and their families have requested the charges be withdrawn.

In addition, the District Attorney’s office noted that Hintze has no prior criminal history.

Training is being coordinated with the Church of Jesus Christ of Latter-day Saints regarding abuse reporting.

Earlier this year police had alleged Hintze knew about the allegations against Shawn Cory Gooden, a Lebanon County church leader who was arrested in 2022 after allegations of child sexual abuse.

State Police had alleged Gooden and the victim “disclosed the sexual assault” to Hintze, who “failed to report the abuse to authorities.”

Thanks,

-Smac

[JAHS]

DA drops charges against Latter-day Saint stake president

A Latter-day Saint stake president in Pennsylvania no longer faces a charge that he failed to report or refer suspected child abuse.

The Dauphin County District Attorney’s Office withdrew the criminal complaint Friday that had charged President Rhett Hintze of New Cumberland, Pannsylvania, with not reporting suspected child abuse allegedly committed by a member of The Church of Jesus Christ of Latter-day Saints in 2000.

The church praised the decision in a statement issued Friday afternoon.

“The Church of Jesus Christ of Latter-day Saints takes allegations of child abuse very seriously and complies with child abuse reporting obligations,” church spokesman Sam Penrod said. “The Church has stood behind Rhett Hintze from the time this case was filed and appreciates the vigilant efforts of the district attorney’s office to thoroughly review the case, which has resulted in the charges against him being dismissed. President Hintze complied with the law and supported the victims through the legal process.”

“We are relieved and gratified that the Dauphin County District Attorney has withdrawn the charges filed against Rhett Hintze,” Hintze’s attorney, James T. Clancy, said in a statement provided to the Deseret News. “It is clear from the facts of the case that the charges against Mr. Hintze were not warranted. Mr. Hintze has always been vigilant about the protection of children from abuse of any kind.”

Police said Hintze learned about the abuse more than 20 years after it happened while serving as stake president. The information came from two sources — a confession by Shawn Cory Gooden and discussions with the man who says he was 12 years old when Gooden allegedly took him and his brother on a camping trip to French Creek State Park in 2000 and assaulted him.

After Gooden revealed the abuse to Hintze, the stake president approached the victim. Now an adult, the victim asked Hintze to keep the matter confidential, Clancy said.

“Mr. Hintze immediately consulted with legal counsel,” Clancy said. “Under the circumstances, a report to law enforcement was not required. As such, and honoring the adult victim’s request, no report was made.”

Hintze guided the victim to report the abuse to law enforcement, Clancy said. The report led to Gooden’s conviction in Virginia, where he is serving a prison sentence for child sexual abuse of the victim in that state.

Virginia officials contacted Pennsylvania police about the alleged abuse related to the camping trip in 2000. Gooden, 49, was charged related to those allegations, and the prosecution is ongoing.

Clancy praised the district attorney for withdrawing the charge against Hintze, which was filed in January.

“District Attorney Fran Chardo’s decision reflects his office’s thorough and professional review and consideration of the facts of the case, while also respecting the wishes of the victims of the tragic acts that occurred more than 20 years ago,” Clancy said.

Chardo determined the prosecution “was not in the public interest,” according to a news release issued by the district attorney’s office.

“Law enforcement authorities consulted with the family of the victims of the pertinent child abuse,” the release said. “The victims are now adults. The victims and the victims’ families requested the withdrawal of the charges.”

“We applaud District Attorney Chardo for his shared commitment to vigorously protect children from abuse, and we appreciate the careful consideration he gave to this matter,” Clancy said.

The Church of Jesus Christ called the charge misguided when it was filed in February and said it would vigorously defend Hintze.

Police said Hintze, who as stake president oversees more than half a dozen congregations, is a mandatory reporter of abuse under Pennsylvania’s Child Protective Services Law because he is a religious leader.

But like most states, Pennsylvania law carves out an exception for information clergy learns through privileged communication often known as priest-penitent privilege.

“Confidential communications made to a member of the clergy are protected,” the law says.