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Florida's "Don't Say Gay" law is a discriminatory threat to LGBTQ people, lawyers tell federal court
The Florida law went into effect on July 1. Also: Prosecutors are asking "what instructions Trump gave his lawyers," the Post reports, a sign of how serious the DOJ investigation has gotten.
We’re not into August just yet, but it feels like it, right?
Anyway, I’m back in DC because I wanted to get back to the one city more disgustingly hot and humid than New York City in the summer.
While there are no public Jan. 6 Committee hearings this week (or in August), we learned a lot on Tuesday about what’s going on and where things could be headed in the committee’s work and the Justice Department’s related investigation.
But first, some breaking news out of Florida.
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FIGHTING FLORIDA: “LGBT students, parents, and teachers are hearing loud and clear that they are not welcome, that any discussion of their existence (or their needs) is dangerous, and that schools are increasingly unsafe for them if they face bullying, hostility, or discrimination.”
Lawyers for the students, parents, teachers, and statewide organizations challenging Florida’s H.B. 1557, known as the “Don’t Say Gay” law — which affects all LGBTQ discussions, not just “gay” ones — told a federal court on Wednesday evening about those and other harms already resulting from passage of the anti-LGBTQ law, which went into effect on July 1.
Last month, the state of Florida and other defendants asked that a federal court toss out the lawsuit. On Wednesday, the plaintiffs’ lawyers from Kaplan Hecker & Fink LLP, the National Center for Lesbian Rights, and McDermott Will & Emery LLP filed their opposition, arguing that the lawsuit should be allowed to proceed.
In the filing, the plaintiffs — individual students in Florida schools and parents of such students; teachers in Florida schools; and Equality Florida and Family Equality, statewide organizations whose work and members are affected by the law — argue that the efforts of the state and school districts to dismiss the lawsuit have no merit and are based on a made-up interpretation of the law that wasn’t claimed in debate over the law and hasn’t been seen in how the law is actually being implemented.
Here is as succinct a summary as the lawyers give in opposition to the law:
Plaintiffs, as well as other LGBT students, teachers, and parents, have faced censorship, threats, and warnings that schools cannot protect them from harm. They have experienced concrete, material harm. They reasonably fear that more will follow. And they are living lives of sustained self-censorship. For these reasons, H.B. 1557 is offensive to the First and Fourteenth Amendments and Title IX.
In the state’s request that the court dismiss the lawsuit, it described the law as such:
Far from banning discussion of sexual orientation and gender identity, the legislation expressly allows age and developmentally appropriate education on those subjects. Consistent with that modest limitation, the law prohibits classroom instruction on sexual orientation and gender identity for the youngest children, neutrally allowing all parents, no matter their views, to introduce those sensitive topics to their children as they see fit.
The state later claimed that the law “subjects no one ‘to discriminatory treatment,’” claiming that the law “establishes an educational standard … neutrally, limiting all classroom instruction on ‘gender identity’ and ‘sexual orientation,’ not only instruction on transgender identity and homosexuality.”
In contrast, the plaintiffs in Wednesday’s filing highlight the reality:
Despite its superficially neutral language, H.B. 1557 is aimed squarely at LGBT people. This is clear from statements by legislators and other public officials, who repeatedly expressed fear and alarm that students might learn about LGBT people or families, but who never once expressed concern that students might learn about straight families or “traditional” gender identities.
The filing goes on to highlight the explicitly anti-LGBTQ statements of lawmakers, Florida Gov. Ron DeSantis, his spokesperson (“Perhaps most notably, Governor DeSantis’s spokesperson … labelled the law the ‘Anti-Grooming Bill,’ which is so notoriously anti-LGBT that it cannot even be called a dog whistle.”), and others, as well as the steps already taken by school districts as a result of the law to limit LGBTQ discussions or even symbols.
The teacher of one plaintiff’s daughter “told her not to bring in a picture of herself marching in the Miami Pride parade to contribute to a lesson on Women’s History Month,” the filing notes. Another student was told by his teachers “that they will need to remove their images of support, including Pride flags and rainbows, from their classrooms.”
After discussing limits already placed on students, families, and teachers as a result of the law, the plaintiffs state: “As lawmakers admitted while drafting it, H.B. 1557’s discriminatory effects are a feature, not a bug.”
The plaintiffs challenging the law detail how, in addition to its explicit limitations, the vagueness of the law — none of the terms are defined in the law, they note — and the provision allowing for parents to bring a lawsuit against their school district whenever they have a “concern” that the law has been violated add to its constitutional and other legal problems.
The combination of those three elements — the explicit limitation, the vagueness, and the private action enforcement — results in a near-total chilling of speech, the plaintiffs argue:
The consequence is that while no one can say for sure what H.B. 1557 forbids, everyone knows that it was meant to censor speech about LGBT people and issues, and so the best way to avoid lawsuits is to limit as much of that speech as possible. … Of course, nobody thinks it has a reciprocal implication for discussion of straight people or families.
The state and school district defendants’ replies to Wednesday’s filing are due by Aug. 10. A trial is not set in the case until February 2023, although the law went into effect on July 1.
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READ THE INSTRUCTIONS: In response to former President Donald Trump’s speech on July 26, Democracy Forward CEO Skye Perryman highlighted the scope of the “unique and ongoing” problems raised by Trump and his administration.
“During his four years in power, Trump and his associates engaged in a range of unlawful and harmful conduct, and Trump’s anti-democratic movement continues to pose a unique and ongoing threat to our country’s institutions and civil rights,” Perryman said in a statement. “There have long been highly-resourced, well-coordinated, regressive efforts seeking to undermine the promise of democracy; Trump’s presidency emboldened an even more severe brand of this extremism that continues to harm the American people.”
To that end, the Washington Post reported on Tuesday night, July 26, that prosecutors are investigating Trump’s actions in connection with those efforts to undermine democracy and overturn the 2020 election.
While the Post did not state that Trump is under criminal investigation, the paper did include one key line that suggests the level of jeopardy Trump could be facing:
The prosecutors have asked hours of detailed questions about meetings Trump led in December 2020 and January 2021; his pressure campaign on Pence to overturn the election; and what instructions Trump gave his lawyers and advisers about fake electors and sending electors back to the states, the people said.
This fact — that prosecutors are asking “detailed questions” about “what instructions Trump gave his lawyers” — is a significant step for prosecutors to take due to the highly protected nature of the attorney-client relationship.
A former longtime DOJ lawyer familiar with department investigations told Law Dork that the line of inquiry doesn’t necessarily make clear exactly what’s going on, but it does tell us that the prosecutors have decided that attorney-client privilege doesn’t apply here.
With the caveat that we’re speculating based on what unnamed sources are telling the Post has been happening, the former DOJ lawyer said that it appears the prosecutors are trying to get a complete picture of both how the fake electors scheme came to fruition and how they decided to attempt to execute it. The prosecutors are “trying to figure out what all of the facts are,” certainly, the former DOJ lawyer said, but also, “in terms of your case, you’re wanting to ask questions negating a defense that he might have.”
Specifically, prosecutors could be trying to determine whether there is information that would negate a defense that Trump was simply relying on the advice of counsel. The questions about Trump’s instructions to his lawyers could be seeking information “to establish who’s directing who” in devising and carrying out the fake electors scheme, the former DOJ lawyer said. While “it may not matter legally, one way or the other,” so long as he ultimately went along with it, the former DOJ lawyer said these questions could also be used to establish that Trump knew from start that this effort was fraudulent.
READ THE ROOM: Earlier Tuesday, July 26, the New York Times reported on how the post-election, fake elector scheme was being pursued by a handful of Trump-backing lawyers in spite of, as the Times put it, “acknowledgements” that the whole enterprise was questionable. Specifically, the Times reported that one lawyer, Jack Wilenchik, called the proposed Trump slate of electors in Arizona “fake” — in writing! — in an email.
But when the handful of lawyers were asked by the Times to comment — in the midst of the Jan. 6 Committee’s work and as news of DOJ’s investigation continues to build — none did. Except for Bruce Marks:
Mr. [Boris] Epshteyn, Mr. Wilenchik, Mr. [Mike] Roman, Mr. [John] Eastman, Ms. [Christina] Bobb and James Troupis, another lawyer involved in the plan, either declined to comment or did not respond to emails or calls seeking comment.
Mr. Marks, in an email, disputed that there was anything inappropriate or improper at work.
“I do not believe there was anything ‘fake’ or illegal about the alternate slates of delegates, and particularly Pennsylvania,” he said. “There was a history of alternate slates from Hawaii in 1960. Nothing was secret about this — they were provided to the National Archives, as I understand the procedure, and then it was up to Congress to decide what to do.”
I love that Marks responded, of course, but I especially like that he added “and particularly Pennsylvania” to that first line.
LEFT ON READ: Meanwhile, it’s been more than 40 days since John Eastman last tweeted. (Federal agents literally took his phone soon thereafter and, as reported by Politico on Wednesday, got a warrant in mid-July to clarify their access to his phone in order to address Eastman’s concerns about agents “rummaging” through his phone.)
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