​Can a state decide that religious schools are welcome to participate in a public program, but only if they set aside their core religious beliefs?

That is the question before the U.S. Supreme Court in St. Mary Catholic Parish v. Roy. Protect The 1st provides answers to that question in our amicus brief on the merits of this case. We urge the Court to reject Colorado’s attempt to exclude religious preschools from that state’s universal preschool program because they adhere to traditional religious teachings.

At first glance, this may appear to be another dispute over government funding and religious schools. It is much more than that.

Protect The 1st demonstrates that the First Amendment’s guarantee of the free exercise of religion means little if government officials are free to decide which religious beliefs are acceptable and which are not. A state may not condition participation in a public benefit on abandoning sincerely held religious convictions. Nor may it redefine “religion” so narrowly that only a faith stripped of its actual doctrines qualifies for constitutional protection.

The danger of such government overreach extends far beyond Colorado.

If government can require a Catholic preschool to disregard Catholic teaching in order to participate in a generally available public program, the same principle could be applied to Orthodox Jewish schools, Muslim schools, Protestant ministries, or any religious institution whose beliefs fall out of political favor. Today’s disagreement may concern sexual ethics. Tomorrow it could involve environmental stewardship, immigration, medical ethics, or any number of contested public issues.

Protect The 1st’s brief reminds the Court that religious liberty protects the freedom to live one’s faith, not merely to profess it. The Constitution does not permit government to reward religious organizations only after they surrender the religious practices that define them. The First Amendment was adopted precisely to prevent government from becoming the nation’s theological referee.

That principle should unite Americans of every faith and those of no faith at all. Once government acquires the authority to decide which religious beliefs are acceptable, every religious community becomes vulnerable to the political fashions of the day.

The Supreme Court now has an opportunity to reaffirm a foundational constitutional principle – government may regulate conduct within constitutional limits, but it cannot manipulate religious belief by attaching ideological conditions to public benefits.

The Free Exercise Clause protects religious diversity precisely because it denies government the power to choose which faiths – or which doctrines within those faiths – deserve equal treatment.
​
We look forward to hearing robust oral arguments on these points in the Court’s upcoming October Term.

​Conservatives should not dismiss the newly introduced Right to Record Act simply because it is sponsored by liberal Democrats, Richard Blumenthal (D-CT) in the Senate and Maxwell Frost (D-FL) in the House. They should judge it by a more enduring standard: Would this bill strengthen the First Amendment?
​
The answer is yes – to the benefit of conservatives as well as liberals. The right to record isn’t just about tracking ICE with iPhones. It is also about sting operations that reveal government corruption, censorship, and wrongdoing.
 
This legislation would codify what most federal courts have already recognized: that Americans have a First Amendment right to photograph and record government officials performing their public duties in places where the public is lawfully present. It would also allow people to sue individual federal officers who retaliate against them by threatening them, seizing or destroying cameras or phones, or otherwise interfering with the exercise of that constitutional right. 
 
The right to record is one of the most practical applications of the freedoms of speech, the press, and petition. Citizens cannot meaningfully criticize government conduct if they are forbidden from documenting it. Nor can journalists fully inform the public if officials are free to suppress evidence.
 
Video recordings have repeatedly settled disputed accounts of encounters between citizens and government officials. Sometimes they have exposed official misconduct. Other times, video evidence has exonerated officers falsely accused of wrongdoing. Either way, recordings promote accountability and public confidence because they replace rumor with evidence.
 
Conservatives, in particular, have long argued that government power should be transparent and subject to public scrutiny. This is why many Republicans in the House have sponsored similar measures in the past. Just as important, the Right to Record Act recognizes a constitutional truth that often goes overlooked – rights require remedies.
 
A right that exists only on paper is easily ignored. Constitutional guarantees become meaningful only when government officials face consequences for violating them. Otherwise, James Madison wrote, a right is only a “parchment barrier.”
 
The ability to seek damages against officers who intentionally suppress protected First Amendment activity gives those guarantees practical force. It encourages officials to respect constitutional boundaries before violations occur rather than leaving citizens with hollow victories after the fact.
 
Protect The First has consistently maintained that First Amendment protections must apply equally regardless of ideology or politics. A free society cannot reserve constitutional rights for favored speakers or favored causes. Whether someone is documenting an immigration raid, a political protest, a religious demonstration, or any other public interaction with federal officials, the governing principle should remain the same – government officials exercising public authority may themselves be observed by the public they serve.
Having just celebrated our nation’s 250th anniversary, we should recall something else James Madison wrote:
 
“Knowledge will forever govern ignorance, and a people who mean to be their own governors must arm themselves with the power knowledge gives.”

​AI scholar and USC Annenberg professor Kate Crawford has written a compelling thought piece for the Knight Institute. “Of Slop and Swarms: The First Amendment’s Next Test,” raises thorny questions. In fact, as much as anything, it’s a roadmap for anticipating the kinds of free speech issues that AI is likely to engender.

It’s well worth your time to read Professor Crawford’s essay from beginning to end, but the gist of her assertions centers on the juxtaposition of human agency and generative AI, which produces content.

“Generative AI,” Crawford cautions, “leaves First Amendment doctrine without a clear account of who, if anyone, is speaking.” And if the answer is that no actual person is speaking, how does the law treat that?

The “presumption of speaking” – of actual speech in the First Amendment sense of expression – would seem then to require both a human speaker and human control.

Such questions are entirely new territory from a First Amendment perspective, which is the point of Crawford’s essay. Particularly thorny issues that Crawford previews include:

• “Slopigation” – a term Crawford uses to describe “endlessly scaling litigation over AI content that no human directly expressed.” Who is responsible for defamation if the author is no one in particular?

 

• If AI itself is deemed to have human-style agency – viewpoints, for example (or, one imagines, creative rights) – then many forms of useful, democratic AI regulation could be upended.

 

• We could learn a lot from the historical experience of the U.S. Copyright Office, which developed a two-part threshold test for determining responsibility: 1) the amount and type of human creative contribution to a piece of content, and 2) human “authorship” stemming from human choices that have intended or at least somewhat predictable outcomes. Predictability, she argues, is inherently tied to human expression, creative or otherwise.

​

• An “express contribution” by a human author is another way to locate AI within existing law. Without such contributions by a person, there is no “speaker” in the traditional sense. Editorial choices, arrangement, and other forms of substantive intervention will all matter when debating the merits of “expression” in the age of AI.

Crawford returns to her central premise – the “presumption of speaking” in the First Amendment sense of protected expression requires both a human speaker and meaningful human control. This approach, says Crawford, tracks Justice Amy Coney Barrett’s stance in Moody v. NetChoice.

That same Supreme Court case raised (but did not settle) an adjacent question involving government regulation of social media content moderation. No one likes the idea of government overreach into what is clearly an expressive medium, but what happens when platform owners cede control and let large language models determine, for example, what is “hateful” and what is “permissible” speech? 

Other points to ponder at the intersection of free speech and AI include:

• Does the “inherently expressive” standard apply to AI-generated content produced and distributed at scale? Where does programming end and authentic human expression begin?

• In considering the boundaries of “speech” in the age of AI, is there a danger that communicative machines may end up being favored over the people who use them?

​

• The First Amendment needs a threshold test – and soon – to even begin navigating AI-generated content.

So stay tuned – probably for the next 20-plus years. In the meantime, read Professor Crawford’s thought-provoking essay.

The American Revolution was not born on a battlefield. It was born in print shops, churches, taverns, and legislative halls.

Before Lexington and Concord, stinging critiques appeared in colonial newspapers, sermons, pamphlets, town meetings, and open debates that relentlessly criticized the rule of the British Crown.

It was only after years of what the British regarded as seditious commentary that fifty-six men came together on July 4, 1776, to sign what was arguably the most dangerous political document in history. They publicly accused King George III of tyranny, cataloged his abuses, declared him unfit to rule, and pledged to one another “our Lives, our Fortunes and our sacred Honor.”

Had the Revolution failed, many of the Declaration’s signers would almost certainly have been tried for treason and hanged.

These Founders put their lives on the line not merely over disagreements about taxes or representation, but over the right of a free people to think, speak, worship, assemble, publish, and petition without fear of government retaliation. Perhaps the single most important sentence in American political philosophy appears in the Declaration’s opening paragraphs:

“Governments are instituted among Men, deriving their just powers from the consent of the governed.”

Those words are impossible to separate from the First Amendment that followed in 1791. Consent cannot exist unless citizens are free to criticize those who govern them, publish unpopular opinions, organize with like-minded people, worship according to conscience, and persuade their fellow citizens to embrace a different course.

James Madison later distilled that principle into one unforgettable sentence, that “the censorial power is in the people over the Government, and not in the Government over the people.”

The Declaration also helped lay the intellectual foundation for religious liberty. Thomas Jefferson's assertion that all people possess natural rights by virtue of their humanity – not by permission of government – led directly to the Virginia Statute for Religious Freedom, which in turn profoundly influenced the Free Exercise Clause of the First Amendment. Religious liberty was not an afterthought to the American experiment. It was one of its central promises.
Those promises remain under constant assault today.

A growing intellectual movement argues that the First Amendment’s neutrality is itself a flaw. One of its leading proponents, law professor Mary Anne Franks, contends that the Constitution places too much emphasis on protecting speech and too little on shielding people from the harms speech can cause. As Protect The 1st has previously noted, this school of thought would fundamentally transform the First Amendment from a shield against government censorship into a tool that empowers government to decide which ideas may be expressed and which may be suppressed.

That would reverse the Founders’ design. The First Amendment was written precisely because government cannot be trusted to distinguish acceptable opinions from unacceptable ones. Once government is empowered to silence speech because it is deemed harmful or offensive, every dissenter speaks only by permission of the state.

The free exercise of religion likewise remains under pressure.

Protect The 1st has repeatedly defended the rights of Americans of all faiths – from faith-based schools to ministries and prisoners – to live according to their beliefs without being coerced by government into violating their consciences. The many efforts by federal and state officials to force the Little Sisters of the Poor to abandon their religious convictions remind us that the struggle for religious liberty did not end with the Founding.

The Declaration of Independence was America’s first great act of protected speech – a declaration that government’s true purpose is to secure liberty, not to ration it.
​
Every Fourth of July, we rightly celebrate our independence with fireworks and family gatherings. We should also celebrate the freedoms that made independence possible in the first place – the freedom to speak boldly, worship freely, criticize fearlessly, and persuade peacefully.

​When Rights Have No Remedy

A right without a remedy is no right at all. That is why Protect The 1st is disappointed that the U.S. Supreme Court last week did not uphold the right of a Rastafarian prison inmate to seek damages after Louisiana prison officials forcibly shaved off his dreadlocks.

The Religious Land Use and Institutionalized Persons Act (RLUIPA), shorn of such a remedy, will now offer less than full protection for profound violations of the free exercise of religion for people of all faiths – Jews, Muslims, Christians, Sikhs, and others.

“Looking at the broader defense of religious freedom, however, PT1st remains optimistic,” said Gene Schaerr, PT1st general counsel. “Today’s opinion is unfortunate, but this Supreme Court has been the strongest ever in supporting the free exercise of religion. Protect The 1st looks forward to advancing the cause of religious freedom in future cases.”

Prison officials threw the law into a trash bin

The case arose from the experience of Damon Landor, a devout Rastafarian who had grown his dreadlocks for nearly two decades as an expression of his faith. After being transferred to a different Louisiana prison only weeks before his release, Landor explained that his religion prohibited him from cutting his hair. He even presented prison officials with documentation showing that courts had already recognized his right to maintain his dreadlocks under RLUIPA.

Instead, officers threw the court decision into the trash, restrained Landor in a chair, and forcibly shaved his head. 

Turning the law into an unenforceable “parchment promise”

When the Supreme Court agreed to hear the case, Protect The 1st noted that RLUIPA was enacted to ensure that incarcerated Americans do not surrender their religious liberty at the prison gate. Congress recognized that prisoners are uniquely vulnerable to arbitrary government action and therefore provided robust protection for their sincerely held religious beliefs.

The issue before the Court was whether those protections include the ability to recover damages from officials who knowingly violate the law. Without that remedy, many violations will never receive meaningful judicial review. Sometimes, prisoners’ rights are violated before courts can issue injunctions, leaving no practical consequence for officials who disregard religious rights. That, of course, is what happened to Landor. And, as we warned when the Court accepted this case, legal protections risk becoming little more than a “parchment promise” if they cannot be enforced retroactively through monetary relief. 

The Court has now concluded that RLUIPA does not authorize damages against individual state officials. As a practical matter, that means many future victims of similar violations will have little recourse once the immediate injury has passed. 

Yet this decision should not obscure the larger trajectory of religious liberty at the Supreme Court. Over the last decade, the Court has repeatedly reaffirmed that government must respect the free exercise of religion, whether the claimant is a church, a religious school, a family-owned business, or an individual seeking to live according to conscience.
​
Protect The 1st will continue advocating for Americans of every faith and no faith to ensure that the First Amendment’s promise of religious liberty remains meaningful. Even after this setback, we remain hopeful that the cause of religious freedom is moving forward, one case at a time.

​Paigelynne Gonyea was working at a polling place in Syracuse, New York, when she received a phone message from a special agent with the Department of Homeland Security.

The caller said agents “were just by” her apartment seeking to talk to Gonyea about an online post in which she supposedly “doxed an ICE agent back in January.”

Gonyea, who has an Instagram account with more than 30,000 followers, took this as a reference to a post she had made about a masked ICE agent linked to a major national story, the fatal shooting of Renée Good in her car.

Gonyea’s post read: “The ICE agent who shot and killed Renée Good in broad daylight has been identified as Jonathan Ross by the Minnesota Star Tribune. I think today is a great day for Jonathan to be indicted!”

When armed agents took Gonyea up on offer to meet at her polling place, she was presented with a “warning notice.” This document informed Gonyea that “it is unlawful to threaten to assault, kidnap, and/or murder a federal official” and that “knowingly making restricted personal information about a covered person, or their immediate family member, publicly available with the intent to threaten, intimidate, or incite the commission of a crime.” Doing so, the document said, could subject her to federal and state prosecution.

Gonyea was baffled. The post she had made did not include Ross’s address, phone number, or any other personal information other than his name – which had been widely reported.

Gonyea later told the media that the agents “tried to scare me into signing” the document “while I was working.” She refused. She also refused to remove her post about Agent Ross.

To summarize: Whatever one thinks about ICE’s efforts to repatriate undocumented persons in general, or the facts surrounding the shooting of Renée Good in particular, all Gonyea did was to make a post expressing her opinion that a named agent of the federal government should be indicted for shooting a woman. ICE treated that opinion as a crime, showing up at polling station with armed officers who attempted to intimidate Gonyea into signing a document in which she would have likely incriminated herself.

To be sure, it is indeed a crime to publish “restricted personal information” about a federal official with the intent to do harm. ICE’s unwillingness to distinguish between this sort of actual “doxing” and expressing an opinion about holding an agent accountable before the law displays a thuggish disregard for the First Amendment.
​
More details are available in this NPR post. Read here. 

​The Unitarian Universalist Association is currently developing a theological statement about the use of AI, one of many religious institutions that are no doubt doing so in the wake of Pope Leo’s encyclical – notably the first of his papacy – On Safeguarding The Human Person in the Time of Artificial Intelligence.

Writing for Business Insider, Sarah Needleman notes that both of these currents may have influenced software engineer Erin Maus, a Unitarian Universalist who lives in North Carolina, to seek a religious exemption from using AI in her work (an exemption her employer subsequently granted without fanfare). On the basis of Needleman’s reporting, Maus may be the first person to raise a faith-based religious objection to AI, but she certainly won’t be the last. This means that, from the standpoint of the First Amendment and the free exercise of religion, we should consider this a developing story.

In the years to come, numerous lawsuits about various aspects of AI will be filed and heard in the courts. And that’s as it should be in any free society, especially given that AI potentially augurs the most significant social change in more than a century.

So we will have to see how the ever-evolving debate over the Free Exercise Clause plays out in the age of AI. The courts have historically shied away from considering or evaluating the validity of a person’s religious beliefs (or objections on that basis). Instead, the measure is sincerity, a principle that has been in place at least since the U.S. Supreme Court’s 1944 Ballard decision.

In his encyclical, the pope acknowledged the need for “robust legal frameworks” to regulate AI. But the emergence of new, unorthodox religious beliefs might yet force courts to find some way to draw a reasonable line on what constitutes a sincere religious belief.

It is easy enough to see how an employer might suffer from employees who assert a religious objection to AI. What if someone asserts a religious objection to walking an upswept floor? A strict adherent of Jainism, seeking to avoid stepping on a tiny creature, might well do so and would likely prevail in court. But what if some new faith instills a religious objection to answering phones? Or to entering data? Or to smiling at customers?
​
Difficult deliberations await the courts, with the First Amendment front and center. We can only hope that the government will always “err” on the side of requiring a high standard of proof when it comes to imposing a substantial burden on the free exercise of religion.

​What Thomas Nast was to the age of 19th-century political cartooning, AI is becoming to modern political satire. We’ve all come across AI-generated shorts that depict realistic looking political figures – AOC, Donald Trump, Bernie Sanders, J.D. Vance – saying and doing absurd things.  
 
The Babylon Bee’s “We Asked AI to Predict What Will Happen Now that Elon Musk Is a Trillionaire” is a sterling example of how this technology can allow Americans to engage in a pastime as old as the Republic – ridiculing public figures. And if the satire is broad enough, no one mistakes these shorts for the real thing.
 
But the same technology that can ridicule a politician can also take the image of a woman – whether she’s an ex-girlfriend or a celebrity – and create what appears to be an image of her acting out hardcore porn.
 
Republican Arizona state Rep. Nick Kupper set out to do something about this by outlawing revenge porn and other AI-generated sexual depictions of underage victims, as well as of adults who have not given their consent. Arizona Gov. Katie Hobbs, a Democrat, vetoed his bill, claiming in a statement that the bill’s sponsor said in committee that the “legislation’s intent is to require the consent of an elected official before they are satirized on a show like South Park.”
​
Kate Ruane, director of the Center for Democracy and Technology’s Free Expression Project, told the Tucson Sentinel that the bill’s definition of “synthetic” content – any visual depiction altered or created using AI or digital technology – is vague and could encompass parody, satire, or public-interest citizen reporting.
 
“That introduces a whole new host of issues that will create a gigantic burden for speech that is happening on a lot of very big platforms that allow sexual content,” Ruane said, referencing websites such as Reddit, Bluesky, and X. “It will be up to the whims of political actors to determine what content is covered by sexual content that is harmful to minors …
 
“What we're dealing with here is the potential for significant jawboning, essentially, on the part of motivated politicians who wish to erase certain speech from the internet,” Ruane said. “What you could get is just gigantic blocking of content.”

In other words, the bill could create a “Mother, May I?” standard for seeking permission from politicians before satirizing them on sites where one could also find some types of sexual material (basically, the same standard as any of the major streaming channels).
 
For her part, Gov. Hobbs says that Arizona law and the federal Take It Down Act already protect Arizonans. The governor also says that she reached out to the Rep. Kupper to sharpen the bill, only to be rebuffed.
 
For his part, Rep. Kupper told The Center Square that the governor’s statements are misleading and that his bill is an improvement over the Take It Down Act in that it would prevent offending material from being uploaded – not merely allow it to be punished with criminal charges and civil remedies later.
 
“Once it’s uploaded, the harm has been done to the individual who’s in the content,” Rep. Kupper said.
 
Whether or not courts would find that clause to be prior restraint – forbidden under First Amendment law – the culling of content before it is posted seems to us to validate Ruane’s concern about overreach. Blocking content could incentivize platforms to censor anything that smacks of synthetic material, leading to political jawboning and “the gigantic blocking of content.”
 
Perhaps the two politicians should get together to discuss a better approach – before someone satirizes them.

​Congress recently passed the first federal education tax credit, providing billions of dollars to scholarship-granting organizations that support tuition, tutoring, special-needs resources, school supplies, and technology for both public and private school students.

Under the law, states must formally and affirmatively choose to accept these scholarship funds. More than two dozen have already done so, while California remains undecided. Jared Polis, the Democratic governor of Colorado, put it bluntly: “I would be crazy not to” opt in. But to date, fellow Democratic Governor Newsom has not yet indicated whether California will follow suit.

The program would allow individual California taxpayers to receive dollar-for-dollar tax credits on their federal tax returns, up to $1,700 a year for contributions to K-12 scholarship organizations. Moreover, if the governor opts in, California parents will be able to more fully realize the potential of living in a First Amendment society, by freely choosing a school that best reflects their values. Whether that choice is a science-based academy, an arts school, or a religious school, all are subject to existing state standards in education.

Please tell Gov. Newsom that California should opt in to this federal tax credit before the program's January 1, 2027, deadline. Doing so:

• Will not divert money from the State of California or public-school budgets
  
  
• Will serve students in both public and private schools
  
  
• Will improve educational outcomes for California and give our children a better shot at a great future – without encouraging families to move to states where such scholarships are accepted

Democrats for Education Reform late last year released a poll showing that nearly two-thirds of voters – 64 percent – favor Gov. Newsom opting into these scholarships. Only 19 percent oppose opting in.

The majority includes 61 percent of Democrats, 68 percent of Hispanic voters, and 63 percent of African-American voters.

Support for California’s inclusion is widespread, bipartisan, and intense.

“Every day, we see how much a scholarship expands educational options and can change a child’s life,” says Rachel Elginsmith, CEO of the BASIC Fund. “Families aren’t asking for politics, they’re asking for opportunity. California can lead the way by saying yes to a program that empowers parents, expands access, and keeps much-needed resources here at home.”

“California must say yes,” says Rep. Vince Fong (R-CA). “It's time to unlock opportunity for families and put parents first.”
​
It would be a mistake to forgo this unique opportunity for California’s children. If you agree that the state’s families deserve more educational opportunity, contact Gov. Newsom and urge him to opt in to the federal Educational Choice for Children Act.

When lawmakers decide that some Americans may speak about politics and public issues while others may not, the First Amendment is relegated to secondary status.

That is the core issue in a new lawsuit challenging Hawaii’s Act 11, a law that bars a broad range of organizations from engaging in political and ballot-measure advocacy. The plaintiff, the Grassroot Institute of Hawaii, argues that the law violates the First Amendment by preventing nonprofit organizations, businesses, associations, and other groups from speaking about candidates, elections, and ballot initiatives. 

At first glance, some may shrug. After all, corporations are not exactly a sympathetic constituency. But that misses the point.

The First Amendment protects people. And people often join together in organizations to make their voices heard.

The NAACP, the Sierra Club, the National Rifle Association, labor unions, chambers of commerce, churches, civil-rights organizations, and countless local advocacy groups all rely on the ability of individuals to pool resources and speak collectively. All are “corporations.” Restricting the speech of organizations inevitably restricts the speech of the people who make up those organizations. 

According to the complaint, Hawaii’s law goes far beyond regulating campaign contributions. It broadly prohibits many organizations from spending money or resources to support or oppose ballot measures and other political causes. The law also authorizes severe penalties, including revocation of an organization’s legal status, termination of state contracts, and even involuntary dissolution. 

That is a level of speech coercion worthy of King George III. Whether one agrees with the Grassroot Institute’s views is beside the point.

Imagine a future legislature deciding that environmental groups cannot campaign for a ballot initiative. Or that pro-life organizations cannot advocate for a constitutional amendment. Or that business associations cannot oppose a tax increase. Or that labor unions cannot seek a change in labor law.

Once government acquires the power to decide which organizations may participate in public debate, every group becomes vulnerable when political winds shift.

The danger is particularly acute when ballot measures are involved. Ballot initiatives are one of the purest forms of democratic self-government. Citizens are asked to decide major policy questions directly. To make informed decisions, voters need to hear arguments from every perspective.

The lawsuit also raises another troubling issue: speaker discrimination. According to the complaint, Hawaii’s law exempts traditional media organizations, allowing newspapers and broadcasters to continue publishing editorials and commentary on candidates and ballot measures while restricting many other organizations from engaging in similar advocacy. 

The First Amendment was designed precisely to prevent government from deciding which speakers are trustworthy and which are not. Government officials should not be empowered to pick favored participants in public debate while silencing others.

Americans regularly disagree about politics. We disagree about taxes, education, energy policy, public health, immigration, and countless other issues. The answer to those disagreements is not to narrow the range of voices in the public square. It is to widen it.

The principle at stake in this case extends far beyond Hawaii. Today, one state may target think tanks, nonprofits, or business organizations. Tomorrow, another state could target labor unions, advocacy groups, or religious organizations.

A government that can decide who gets to speak about public affairs possesses a power fundamentally at odds with the First Amendment.
​
In a free society, citizens retain the right to join together, advocate for causes they believe in, and persuade their fellow Americans. That principle protects every viewpoint, not just the popular ones. And it is worth defending, no matter who happens to be speaking.

​When government officials scrutinize media outlets because they dislike the viewpoints being expressed, Americans of every political persuasion should pay attention.

That is the core message of a new comment filed by Protect The 1st with the Federal Communications Commission (FCC) regarding the agency’s unusual decision to revisit a decades-old determination that ABC’s The View qualifies as a “bona fide news interview” program. 

As we noted in an earlier post, the FCC has raised questions about whether The View should continue to enjoy an exemption from federal “equal opportunity” requirements that apply to broadcast candidates. The trigger for this inquiry was The View’s hosting of James Talarico, a liberal Democrat and his party’s nominee for a Texas Senate seat.

In our public comment, PT1st tells the FCC that when it withdraws regulatory approvals over disagreements with a show’s hosts or guests, it crosses a dangerous constitutional line. The Commission would move from regulating technical aspects of broadcasting to becoming an arbiter of acceptable political speech. 

That should worry conservatives as much as liberals.

Today, the target may be a left-leaning daytime talk show. Tomorrow, a progressive administration could use the same precedent against conservative broadcasters, podcasters, or commentators. Once government acquires the power to punish or pressure speakers because of their viewpoints, no ideological camp remains safe for long.

PT1st’s comment emphasizes a simple principle: the First Amendment exists precisely to protect speech that many people dislike. Government officials do not get to decide which viewpoints are sufficiently balanced, neutral, or acceptable to deserve protection. 

Worse, if broadcasters conclude that politically controversial interviews could trigger regulatory scrutiny, many may choose to avoid such programming altogether. The result would be less debate, fewer interviews, and fewer opportunities for voters to hear competing perspectives. Even the threat of government retaliation can chill speech before it occurs. 

Our filing also notes that the media landscape of 2026 bears little resemblance to the one that existed when equal-time rules were first developed. Americans now receive news, commentary, and political information from thousands of sources, including podcasts, streaming platforms, social media, newsletters, and online publications. The View competes in a marketplace crowded with voices from every point on the political spectrum. Consider:
​

• The View, the most popular daytime television show, attracts about 2.5 million viewers.

 

• But more than 16 million people follow podcaster Joe Rogan, whose show on Spotify is not (and should never be) subject to FCC regulation.

While The View featured Senate candidate Talarico, Joe Rogan – with an audience more than six-and-a-half times greater – featured presidential candidate Donald Trump just before the 2024 election. This comparison shows how antiquated New Deal-era laws are, harking back to a time when access to the airwaves had to be rationed because of scarce spectrum.

While broadcast television may lean left, the national cafeteria menu offers plenty of options on the right. The notion that government officials must supervise editorial choices to ensure citizens hear competing viewpoints in this new age of information abundance is risible.

Reasonable people can disagree about The View. Some find it informative. Others find it partisan. Still others may simply change the channel.
​
But in a free society, those decisions belong to viewers holding their remotes, not regulators.

​Like baseball great Yogi Berra, who once said he’d give his right arm to be ambidextrous, we’d like to accommodate all sides in a debate over speech, religious belief, and one’s obligations to an employer.

But it ain’t that simple.

When the San Francisco Giants required players to promote LGBT+ inclusivity during Pride Month with rainbow caps, most members of the team wore the cap. But several members added Bible verses to their caps, while one or two opted not to wear the caps at all.

Major League Baseball had warned the players that writing on the caps violates league policy. The league’s crackdown inspired Vice President J.D. Vance and Sen. Josh Hawley (R-MO) to rush to defend the speech rights of the dissenters on the diamond.

Where does the First Amendment actually come into play here?

On one hand, many players – like starter Landen Roupp and relievers JT Brubaker and Ryan Walker – had objections to the cap on the basis of traditional religious beliefs. Roupp had used a marker to ink in “Gen. 9:12-16” on his cap to shift the Pride narrative to the Biblical passage in which the Lord set rainbows in the clouds as a sign of His covenant.

Under Title VII of the Civil Rights Act, the religious rights of the players must be respected by their employers. Surely, one’s religious beliefs can’t be trumped by marketing, right?

But there are other dimensions to this story that reveal the complexities and tradeoffs in First Amendment law that often come into play in the real world. It is, in fact, league policy to forbid any writing on a team baseball cap, as one player found out earlier when he received a warning for writing “I Love Mom” on his cap. So it is no surprise that players were reprimanded for writing Bible verses on their caps.

Then there is the issue of the players’ contractual obligations to the team. While we don’t have access to their contracts, we are confident that players cannot show up to play wearing top hats, berets, or caps that advertise their favorite beer. Part of being a Giant means showing up in a Giants uniform. And being part of a team means supporting the team’s messaging.

So how might a solution balance the First Amendment and the free exercise of religion with the dissenters’ contractual obligations to their team?

When there is such a collision of rights and obligations, the law usually seeks a reasonable accommodation – a compromise that respects an employee’s beliefs without impeding the needs of the employer.

Protect The 1st believes that a reasonable accommodation of the First Amendment rights of the players would be to allow those with sincere religious objections to the rainbow cap to instead wear the Giants’ customary black cap with “SF” emblazoned in orange. This accommodation would not, however, allow players to appropriate the team’s logo for their own messages – whether Bible verses, kisses to Mom, or anything else. To allow that would be to allow players to commandeer the image of the whole team.
​
Such a compromise is not satisfying and is likely to upset some people on both sides of the Pride versus Bible divide. But sometimes, to paraphrase Yogi, when you come to a fork in the road, you gotta take it.

​The U.S. Supreme Court will soon hear a case, Suncor v. Boulder, in which the city and county of Boulder, Colorado, seek to punish fossil fuel companies for presenting contrarian views on climate change.

This should trouble anyone who cares about open debate, including people who angrily disagree with the energy company defendants.

Boulder is trying to compel everyone to agree with only one side of a public issue, violating the First Amendment. Worse, allowing lawyers to act as national moderators would stifle science. Remember when the theory that the COVID-19 virus was artificial was considered so outlandish, and even racist, that it had to be suppressed on social media? That stiff-arming approach to a critical question lasted until the Biden-era CIA and FBI concluded that an artificial origin for the virus was the likeliest explanation.
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In this Washington Examiner article, PT1st General Counsel Gene Schaerr describes our brief asking the Supreme Court to recognize the danger arising from devastating financial penalties meant to force ideological or scientific conformity.

​The Office of Management and Budget (OMB) proposes to change how the federal government distributes research grants. Debates over this proposal remind us, once again, how deeply Washington’s fingers are embedded in activities that put tax dollars behind speech.

As Chad de Guzman reports in Time, the OMB proposal would put senior political appointees in charge of a “pre-issuance review.” Appointees would screen awards to ensure that they do not “fund, promote, encourage, subsidize, or facilitate” a list of disfavored ideas. Moreover, they could cancel a grant “for convenience” the moment it stopped serving this or the next administration’s “policy priorities.”

The OMB draft also places unnecessarily burdensome restrictions on where and how researchers can publish their research. 

To be fair, OMB is reacting to years of federal grants being made to NGOs that are, beneath the surface, decidedly partisan, ideological, and political in intent. But this proposed rule is an overcorrection, one that is sure to encourage precisely the kinds of government-subsidized speech it is meant to correct.

This 400-page proposal should be revised to allow genuinely independent experts – the post-war arrangement that let scientific merit decide what gets studied. On matters of hard science, their opinion should carry more weight than a role that is merely “advisory.”

The government is, of course, allowed to choose what it pays for. It can fund cancer research and not astrology. But there is a line, and it’s one Justice Robert H. Jackson drew plainly in 1943:

“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.”

A summary of that case, West Virginia State Board of Education v. Barnette, is worth revisiting today. So is Chief Justice Roberts’ opinion in a 2013 case about the moral assumptions around combating HIV/AIDS. In that instance, policy requirements tied to U.S. funding went too far, he wrote, effectively requiring grant recipients “to pledge allegiance to the Government’s policy ...”

Most importantly, Roberts ended the opinion by grounding it in the First Amendment. A policy requirement that compels affirmation of certain kinds of beliefs flatly “violates” the First and “cannot be sustained.” And for good measure, the Chief Justice used the same quote from Jackson.
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There is time for OMB to sharpen its proposal so that it tries as best as humanly possible to remove partisanship and enforced viewpoints out of grantmaking altogether.

​A bill protecting reproductive and transgender healthcare services has become snagged in controversy in the New Jersey Assembly. But it is not the underlying philosophy of the bill that is generating controversy in this socially liberal blue state.

The problem is a clause in the bill that would criminalize, as “interference” with gender-affirming healthcare, speech that “would cause a reasonable person to suffer: (a) damage to the victim’s business or personal reputation; (b) financial harm; or (c) pain and suffering mental anguish or emotional harm.”

Really? You’re going to try to call out the police to impose polite speech in New Jersey?

The Garden State, after all, is the birthplace of Chelsea Handler and Joe Piscopo. It is where the irreverent Bostonian Bill Burr got his start in the business of being insultingly funny. Across the Hudson River lies the home of George Carlin, Don Rickles, and Andrew Dice Clay.
Good luck with that!

New Jersey Attorney CJ Griffin, who calls herself “an LGBT person,” told Dana DiFilippo of The New Jersey Monitor that while she applauds the intent of the bill, “you can’t unconstitutionally punish speech you don’t like … I get that lawmakers have constituents that are pushing very hard for this. But their biggest constituent needs to be the Constitution.”

The New Jersey Press Association also issued a statement urging legislators to remove this clause of the bill.

“Language around the vague term ‘reasonable person’ enables broad claims to ostensibly protect reputations or hurt feelings,” an association spokesman explained.

“For example, contrary to what the Constitution requires, the expansive language means a reporter could be civilly or criminally liable for publishing an article about the troubling practices of a reproductive healthcare services provider, even if the reporting was well-documented and fully accurate. A provider could simply assert his or her reputation or emotions were harmed by that truthful reporting.”

The slowdown of a bill that appeared to be fast-tracked indicates that second thoughts are taking place among the bill’s supporters about that clause. We would not be surprised to see the bill return with the speech-regulation clause removed.

This episode remains, however, a sobering reminder of how many people in positions of responsibility are still somehow able to graduate from high school, college, even law school, and not understand how the First Amendment operates.

​As David Badash writes in AlterNet, protesters have been displaying an “86 47” flag in front of the U.S. District Court in Washington, D.C. Interpreting the flag’s language as a “threat against the President,” the Interior Department had asked the National Park Service to revoke the group’s permit.

Yet even Merriam-Webster refuses to ascribe violent meanings to the term “86” – which began among soda jerks as slang for refusing to serve an unruly customer. So does federal Judge Randolph Moss, who issued a two-week restraining order against the Park Service, saying Accountability Now USA’s rhetoric did not imply violence.

The red, white, and blue flag “contains no knives, skulls, nooses, or other threatening symbols” the judge noted, and was surrounded by “four signs that read ‘IMPEACH. CONVICT. REMOVE.’” Protesters had told the court that their intentions were peaceful and political, namely to engage passersby and advocate for impeachment – which is protected political expression, both permitted and permit-able. A flag, in other words, is not a rifle scope. Badash quotes the court’s opinion at length:

“The Court does not doubt that political violence is on the rise and that it poses a grave threat not just to the targets of the threats but to the country as a whole. But the enormity of that problem does not change the meaning of Plaintiff’s speech, which by any reasonable measure merely advocated for the President’s impeachment and removal from office.”

According to the ruling, a Secret Service officer interviewed one of the protesters, asking her about having “no ill-will towards” the president. She replied, “I want Trump to live forever” and for him to “rot in jail.” The officer left and even assured the protester he wanted “to make sure that [her] First Amendment rights are protected.”

Which may be why Judge Moss wrote in closing: “The Court can only guess as to why the agency decided to censor Plaintiff’s speech.” He also referred to the Park Service as “the agency that directed Plaintiff to remove (that is, to 86) the flag.”
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Since the beginnings of our democracy, political speech has often been rough and rude. Whether the message is “Let’s Go Brandon,” or “86 47,” when government officials start treating political slogans as criminal threats based on speculation rather than evidence, the danger is not merely to one protest group – it is to the First Amendment rights of everyone who engages in the rough and tumble of political speech.

The word “jawboning” was popularized by John Kenneth Galbraith during World War II. Galbraith picked up the term after witnessing bureaucrats at the federal Office of Price Administration using verbal intimidation to harass businesses into keeping their prices low.
 
The federal government no longer uses jawboning to control prices. But during the Biden administration it tried to do something much more sinister: use jawboning to control speech. At one time, teams of government agents – from the FBI to the Cybersecurity and Infrastructure Security Agency – were tasked with monitoring social media and contacting platforms to demand that certain content be taken down. What began as a crackdown on those who questioned the efficacy and safety of vaccines soon expanded to suppress wide range of conservative speech. Some sites, like PragerU, actually disappeared for a while from Google and YouTube, being placed in “restricted mode.”
 
“These people from the Biden administration would call up our team and scream at them and curse,” Meta CEO Mark Zuckerberg told Joe Rogan on his podcast last year. As a result, many conservatives began to wonder why their posts and organizations were being shadowbanned, de-posted, deplatformed, and demonetized.
 
This dangerous use of secret power created a situation in which the federal government was actively managing the national conversation. Sen. Ted Cruz (R-TX) said last year:

“It is dangerous for the government to abuse its authority and act as the speech police. No free society, built on an informed citizenry and public discourse, can thrive when government censors lawful speech and sets itself up as the arbiter of truth. With growing bipartisan interest in protecting free speech, I am increasingly hopeful Congress can advance legislation to stop government jawboning and safeguard every American’s right to free speech.”
 
That bipartisan interest bore fruit. Sen. Ted Cruz (R-TX) joined Sen. Ron Wyden (D-OR) to introduce the JAWBONE Act to stop federal agencies from pressuring social media and tech companies to censor lawful speech. The legislation aims to provide Americans with a robust legal right to sue and seek monetary damages if the government pressures platforms to remove, demonetize, or suppress their content. 
 
What the JAWBONE Act Does
 
The JAWBONE Act outright bans government coercion of platforms, whether it is to remove or add content. Observing the legal principle that a right without a remedy is no right at all, this bill contains a provision that gives Americans a private right of action against government officials who violate their First Amendment rights.
 
The bill would also compel the government to disclose its attempts at jawboning, revealing certain communications with social media and AI companies, and broadcasters.
 
This bill, as it moves forward, might be clarified on some points. For instance, does the ban on jawboning – which covers government officials and employees – extend to the president and vice president? Does it extend to Congress? After all, presidents can exert enormous power over platforms. Powerful committee chairs in Congress can issue subpoenas and launch investigations.
 
It is also not clear whether the bill would restrict the use of regulatory authority – like that exercised by Federal Communications Commission Chairman Brendan Carr and Federal Trade Commission Chairman Andrew Ferguson – in pressuring news organizations to change their coverage.
 
But this bill meets the central and urgent task of confronting what has become a common practice – that of violating American norms and the First Amendment’s guarantee of free speech.
 
Bob Goodlatte, former Chairman of the House Judiciary Committee and PT1st Senior Policy Advisor, said:
 
“Protect The 1st is proud to endorse the JAWBONE Act, and we commend Senators Ted Cruz and Ron Wyden for crafting this legislation. This bill addresses the insidious, behind-the-scenes use of government pressure to control and censor speech in America. The JAWBONE Act counters this toxic trend, including with a sorely needed remedy for First Amendment violations. We look forward to working with the senators to advance this bill into law.”

​We all value our privacy. We all value our First Amendment right to free speech. These two sets of rights can be mutually reinforcing, but they can also be at war. This tension is explored in a conversation between Eugene Volokh, Protect The 1st Senior Legal Advisor, and Jane Bambauer, law professor at the University of Florida.

Volokh asks us to imagine (at the 12:20 mark) that he wants to write about someone’s legal ordeal on his Reason Magazine blog. That person may say, “What about my privacy?” Volokh could reply, “What about my right to speak? And to speak your name?”

That person replies, “Stop talking about me!” But what if Volokh says “No”?

Are our names and stories ours to control? What about anonymous pamphlets that name us? Or hidden cameras that track us? Or revenge porn that humiliates us? Does the First Amendment trump all these concerns?
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Listen to Volokh and Bambauer hash out the complexities of the “uneasy collision” between free speech and privacy law.

​Amid the recent protests at Newark’s Delaney Hall ICE detention facility, numerous reporters came to document a hunger strike by detainees over conditions inside. As Adam Rose writes in his essay for The Guardian, it was a bad day in a bad week for the First Amendment. To wit:

• An officer declared, “If you are press, you got the opportunity right now – and that’s it – to leave. If you don’t leave out here in an orderly fashion, you are coming with us.”

• He then pointed at someone in the crowd, which was composed mostly of journalists, and declared: "You are not press.”

• The previous Friday, police ordered WNBC reporters out of their vehicle and into a cloud of tear gas that had been deployed against protesters.

• Multiple photojournalists have been injured by police while trying to cover the protests.

It seems that the individual the officer declared by fiat to be a non-journalist was a livestreamer, one of many people at the scene who are playing an increasingly important role in modern journalism. This is especially true as the news divisions of local television stations cut their budgets and reduce news coverage.

Police were apparently unhappy because despite their obvious efforts to block access to traditional crews and cameras, the independents were prevailing. Rose points out that there were five live video feeds near the Delaney Hall protests a few nights earlier and that “none came from traditional TV cameras.”

Multiple livestreaming journalists have been arrested at Delaney Hall. One was injured and taken to a hospital. Three others were held in custody for a day and denied access to counsel. One was handcuffed despite having an ID badge around his neck and a blue vest with “PRESS” emblazoned on it. “Like the injured journalist,” noted Rose, “he was a member of the National Press Photographers Association.” They were all told their credentials hadn’t been “verified,” which is authoritarian-speak for “nothing to see here.”

But there was, as it turns out, quite a bit to see – and film. The injured livestreamer saw two arrested protesters when he was at the hospital, but in the absence of independent cameras, how they came by their injuries – or when – was impossible to determine. Was it during the initial clash with police, or while they were being detained?

The Founders didn’t have video, but they would have understood that the surest way to keep the public from learning how people are treated is to make sure nobody is making a record.
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A free press isn’t free if it requires the state’s permission to operate. That thoroughly authoritarian impulse was the very one the framers of the First Amendment most wanted to rein in.

The current U.S. Supreme Court has been one of the strongest in history in protecting First Amendment rights. That is one reason for concern about calls for packing the Court growing among Democratic politicians. They seek to add another four Justices for a total of 13, overwhelming the conservative-leaning Supreme Court led by Chief Justice John Roberts.

There is more at stake here than political score-settling. In a frenzy to reverse the precedents of the Roberts Court, an expanded majority could unnecessarily reverse the Court’s protection of First Amendment rights. We’ll look at those issues in a moment. But first, we should take stock of the true character of this Court.

The Roberts Court Is Not a Rubberstamp for Trump or the Right

Rep. Jamie Raskin, Ranking Member of the House Judiciary Committee, recently charged that the Roberts Court is “robotically loyal” to President Trump and is radically revising law to fit a right-wing agenda.

It is true that this Court struck down Roe v. Wade in Dobbs v. Jackson Women’s Health Organization (2022), sending the issue of abortion back to the voters in every state. But a majority during Roberts’ tenure also voted to make the legality of same-sex marriage the law throughout the land. Roberts himself voted against the majority in that case, but sided with the majority in extending Title VII’s protections against discrimination to gay, lesbian, and transgender people.

The Roberts Court – often joined by some of President Trump’s own nominees – has also ruled against Republican or conservative interests in several hotly contested cases.

One such recent example was the Court’s decision striking down most of the tariffs imposed by President Trump. And don’t forget the Court’s earlier decision in NFIB v. Sebelius (2012) upholding the “individual mandate” that was the heart of Obamacare.

But the true hallmark of the Roberts Court has been a scrupulous defense of speech, as well as the religious rights of individuals and groups that hold viewpoints at odds with the accepted orthodoxy of many officials.

Upholding Speech Rights

The Citizens United V. FEC (2010) decision struck down limits on independent political expenditures, finding that restrictions on independent campaigns are restrictions on speech. The Roberts Court struck down laws that criminalized the creation, sale, and possession of depictions of animal cruelty in United States v. Stevens (2010). The Court also outlawed viewpoint discrimination in government-issued trademarks in Matal v. Tam (2017).

Most recently, the Court 8-1 in favor of the speech rights of a therapist in Colorado who discussed conversion therapy with minors in Chiles v. Salazar (2026). In a concurrence joined by Justice Sonia Sotomayor, Justice Elena Kagan wrote that when a state suppresses “one side of a debate while aiding the other, the constitutional issue is straightforward.”

Striking Down Compelled Speech

On the issue of compelled speech, the Court in Americans for Prosperity v. Bonta (2021) struck down a California requirement that non-profits disclose their major donors, harking back to a principle from NAACP v. Alabama (1958): that anonymity protects donors from persecution – and today, from doxing.

In 303 Creative LLC v. Elenis (2023), the Court held that Colorado could not compel creators in expressive activity – in this case, a website designer – to craft messages that violate their religious or artistic convictions.

Upholding the Free Exercise of Religion

The Court also stoutly defends religious liberty – a key component of the First Amendment – ruling in Espinoza v. Montana Department of Revenue (2020) and Carson v. Makin (2022) that states must give religious schools equal access to otherwise universally available public funds and programs.

In the workplace, the Roberts Court protected the personal, midfield prayers of a high school football coach in Kennedy v. Bremerton School District (2022). Within faith organizations, the Court also prevented government from interfering with the employment decisions of religious institutions regarding their clergy.

In Little Sisters of the Poor v. Pennsylvania (2020) and similar cases, the Court recognized the right of Catholic nuns not to be forced by federal mandates to provide abortifacients and contraceptive coverage to employees in violation of their faith tradition.

There are many more such cases. Most of them involved government mandates that targeted people who hold minority views, or beliefs that are rejected by political elites in many states. In one case, the Court defended the speech rights of the Westboro Baptist Church, a hate group that strives to be as shocking, provocative, and reprehensible as possible. The Court has stood up for outsiders to mainstream culture, ranging from animal rights activists to nuns.

You may agree with, disagree with, or detest some of the viewpoints in these cases. But we are lucky to have a Court that understands that viewpoint discrimination by government is always the greater danger. Respect for the speech rights of the few is the best way to protect the speech rights of all.

Packing the Supreme Court could well bring in a majority that feels it has a mandate to reverse any and all of these cases.
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To learn more about the politics, policy, and law behind court-packing, watch  (starting at the 55-minute mark) or read the testimony of PT1st’s general counsel, Gene Schaerr, before the House Judiciary Committee.​

​The First Amendment protects far more than freedom of the press. It protects the right of Americans to speak, associate, worship, petition the government, and express political views without fear that the government is secretly monitoring their activities.

Yet those freedoms are increasingly threatened by the government's growing reliance on administrative subpoenas – demands for records issued by executive branch agencies without prior approval from a judge.

Unlike traditional warrants, administrative subpoenas often allow agencies to obtain sensitive information without demonstrating probable cause or convincing a court that the request is justified. As Sen. Cynthia Lummis (R-WY) put it:

“Americans’ constitutional rights should not disappear just because they made a phone call or sent a text. Yet today, federal agencies can secretly demand your phone records and personal data from tech companies as often as they want without ever stepping inside a courtroom.”

The danger is not limited to privacy. It strikes at the heart of First Amendment freedoms.

Consider what modern communications records can reveal. Phone logs, text messages, email metadata, web browsing records, social media activity, and app usage can expose a person's political affiliations, religious beliefs, advocacy activities, friendships, and associations. Such records can reveal who attends a protest, communicates with a political campaign, seeks counseling from a religious leader, participates in a grassroots movement, or belongs to an unpopular organization.

The Supreme Court has long recognized that compelled disclosure of associations can chill free expression. Americans are less likely to speak freely, join controversial causes, or engage in political activism if they believe the government can secretly assemble a detailed picture of their activities without meaningful judicial oversight.

The risks are especially acute in an era when so much speech occurs through digital communications. A subpoena directed at a technology company can reveal not only what people say, but also who they communicate with, what they read, what videos they watch, and what causes they support.

Journalists are not the primary victims of this authority, but their experience illustrates how easily government access to records can chill protected expression.

Recent controversies involving government efforts to obtain reporters' records – including, most recently, subpoenas directed at reporters for The Wall Street Journal – have highlighted how authorities can expose confidential sources and chill investigative reporting. The Obama administration and the current Trump administration have used subpoenas issued by courts or grand juries to probe the notes and phone logs of reporters.

Are administrative subpoenas also being used to investigate journalists? Perhaps the better question is: How would we ever know?

Bob Goodlatte, former Chairman of the House Judiciary Committee and a Senior Policy Advisor to Protect The 1st, aptly described the constitutional problem:

“The very term ‘administrative subpoena’ is an oxymoron that is offensive to the Fourth Amendment. It avoids judicial oversight and gives the executive branch the ability to make legitimate-sounding demands to inspect our houses, papers, effects, and data, when it is in fact just illicit government overreach.”

That is why Protect The 1st endorses the bipartisan Subpoena Abuse Prevention Act, sponsored by Sens. Ron Wyden (D-OR) and Cynthia Lummis (R-WY), along with a bipartisan group of House members.

The legislation would require the government to obtain judicial approval before accessing phone records, require officials to certify under penalty of perjury that subpoenas are not being used to monitor protected speech, and prohibit bulk collection requests, such as demands for records identifying everyone who watched a particular video, visited a website, attended an online event, or downloaded a specific app.

These reforms would restore an essential constitutional safeguard – independent judicial review.

The Founders understood that freedom of speech, religion, the press, and association cannot survive if government officials possess unchecked power to identify critics, monitor dissenters, and map private networks of communication.
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In an age when our political, personal, and religious lives increasingly exist in digital form, Congress should ensure that constitutional rights do not disappear whenever an agency decides to issue a subpoena.

​When the COVID-19 pandemic swept across the nation, employers and governments faced difficult decisions. But difficult circumstances do not erase constitutional principles. That is why Protect The 1st has filed an amicus brief urging the U.S. Supreme Court to hear Petersen v. Snohomish Regional Fire & Rescue, a case involving firefighters who sought religious accommodations from a COVID-19 vaccine mandate. 

At stake is a fundamental First Amendment freedom – the free exercise of religion.

The firefighters in this case did not refuse to work. They sought accommodations that would allow them to continue serving the public while remaining faithful to their sincerely held religious beliefs. For roughly 20 months, the department allowed safety measures such as testing, masking, distancing, and other precautions. Then, despite those accommodations, the firefighters were placed on leave. 
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Protect The 1st’s brief argues that lower courts have drifted away from the Supreme Court’s recent decision in Groff v. DeJoy (2023), which strengthened protections for religious employees under federal law. Under Groff, employers must show that a requested accommodation would impose a substantial burden on their operations. Mere speculation or generalized concerns are not enough. 

That standard matters because the facts surrounding COVID-19 changed rapidly. By the time many vaccine mandates were being enforced, enough Americans had received vaccinations or acquired immunity from prior infection to bend the herd-immunity curve and significantly reduce the risk of catastrophic spread. The nation was no longer in the desperate early days of the pandemic.

Protect The 1st’s brief points to expert testimony showing that vaccinated and unvaccinated individuals could both transmit the virus, that natural immunity provided substantial protection, and that alternative mitigation measures remained available. 

None of this means vaccines lacked value. Millions of Americans chose vaccination, and those decisions helped protect vulnerable populations and reduce severe illness. But the existence of broad public compliance is precisely why reasonable religious accommodations were often possible. When most of a workforce is vaccinated and additional safeguards are available, granting a limited exemption to a small number of religious objectors is far less likely to impose a substantial burden on an employer.

The First Amendment has always protected minority beliefs. Religious liberty would mean little if it applied only when a person’s beliefs aligned with popular opinion or government policy.

The Supreme Court has repeatedly affirmed that government may not treat religious exercise as a second-class right. Whether the issue involves houses of worship, religious schools, or employees seeking accommodations in the workplace, the principle remains the same: Americans should not be forced to choose between their faith and their livelihoods unless the government or employer can demonstrate a truly compelling need.
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Protect The 1st’s brief asks the Court to ensure that religious Americans receive the protections Congress intended and that the Supreme Court recognized in Groff. Emergencies may require extraordinary measures. They do not suspend legal protections for religious liberty.