The United States Court of Appeals for the Ninth Circuit may be preparing to revisit its ruling that would destroy the sacred lands of the Apache.
Protect The 1st has long covered the plight of Apache, whose access to the Oak Flat area of the Tonto National Forest has been recognized as sacred to their religion by treaty with the U.S. government since the 19th century. A foreign mining consortium, Resolution Copper, has plans enabled by a midnight deal in Washington in which the company will mine copper in the Apache’s sacred site, to sell to China, and leave a gaping crater the length of the Washington Mall and the depth of two Washington Monuments.
In June, a divided Ninth Circuit held that the land swap could go forward, dismissing the rights of the Apache under the Religious Freedom Restoration Act (RFRA), as well as the First Amendment rights of these American citizens. Many legal observers were dumbfounded. How could the absolute destruction of a site that is the Vatican Hill or Temple Mount of the Apache not be an infringement of their religion – or even a substantial burden on their religious exercise?
At the time, Judge Marsha B. Berzon dissented from the majority, writing “it would be an exceedingly odd statute that recognized and provided remedies for government-created substantial burdens on religious exercise … when it directly prevents access to religious resources. Yet the majority reaches just that illogical interpretation of RFRA in this case, without acknowledging its incoherence.”
Now the court has asked the Apache Stronghold and its attorneys at the Becket Fund to file briefs outlining their positions on whether the case should be reheard.
“This is highly unusual,” said Gene Schaerr, general counsel of Protect The 1st. “What is most telling is that this en banc request was not prompted by the actions of the Apache and their attorneys. Though we can’t be certain, it appears one or the other Ninth Circuit judges took a good hard look at the Panel’s opinion and saw the holes.”
Robert Pondiscio, senior fellow at the American Enterprise Institute and a former New York City public school teacher, and Elli Lucas, research assistant at the American Enterprise Institute, wrote Monday in The Washington Examiner:
“Not only can [school] choice provide a way out for students in failing schools, but it can also enrich our nation by enhancing its vibrancy, variety, and vivacity. Our nation is better off when its schools are not a bland monoculture but rather match the varied dynamism of its people and their aspirations.”
Protect The 1st would only add that religious schools are a strong contributor of vibrancy and variety for a bland monoculture. Empowering schools that offer quality education standards while also continuing faith traditions – be they Christian, Jewish, Muslim, Sikh, or Hindu – is a powerful use of the Free Exercise Clause to the benefit of all.
It has been fashionable for some time now to insist that religiosity in America is in a freefall decline. Now, it seems as though the reports of American religiosity’s death are greatly exaggerated.
According to a study described in a recent Wall Street Journal article, most studies showcasing religious decline in America erroneously lump new congregations, denominations, and non-Christian religions into “Others” and “Nones.” The scale of the error is so significant that pollsters may be missing somewhere around one-third of total religious adherents in the United States. Many of these so-called others and nones are non-Christian religions and breakaway congregations from America’s mainline Protestant denominations which, indeed, have been in freefall decline for decades. A religious transformation is underway in America, but not the one most commentators thought.
This religious transformation demonstrates why it is just as important as ever that Americans continue to enjoy the right to educate their children according to their faith traditions. Protect The 1st supports efforts to protect religious schools and education for people of faith as an expression of the “Free Exercise” clause of the First Amendment.
Brad Wilcox at the Institute for Family Studies said, “childhood religiosity predicts a variety of positive outcomes.” When compared to the general population, adults who went to church routinely from their youth onward report higher rates of happiness, community engagement, and a greater sense of purpose and meaning, while also reporting lower rates of boredom.
Hostility to religion, however, could become a self-fulfilling prophecy.
Barriers to the ability of religious adults to raise their children according to their faith traditions would likely lead to the decline of religion in a couple of generations. Recent Supreme Court decisions such as Carson v. Makin, which struck down the state of Maine’s exclusion of religious schools from participation in rural vouchers, are welcome reminders that many of our leaders today continue to recognize the role of religion in America. There had to be, after all, a good reason for the founders to include the free exercise of religion in the First Amendment.
Our senior policy advisors and former congressmen, Bob Goodlatte and Rick Boucher, wrote an important piece on the need for federal law to protect journalists.
Should the government be free to dig into the records, notes, phone logs and emails of journalists or subpoena them into federal court to catch a leaker?
The consequences of a California law continue to unfold, harming youth sporting organizations while degrading the First and Second Amendments.
Protect The 1st reported earlier this month on the signing of AB 2571 into law, which prohibits the marketing of firearms or related products in a manner that “reasonably appears to be attractive to minors.” While intended to tamp down on soaring rates of gun violence, this new law has so far curbed wholesome youth groups and sporting activities, along with freedom of expression.
Count among the casualties of extortionate speech penalties is the California State High School Clay Target League. Faced with fines of up to $25,000, the League posted on its website that it has been forced to shutter its service to young Californians.
Another youth target shooting organization, the Scholastic Target Shooting Foundation, has had to put up a warning on its website that reads: “The information on this website is not intended for minor audiences in California. If you are a minor in California, please do not continue to this website.” California is forcing service organizations to silence themselves with a digital gag.
The response of some in Sacramento to the outcry of hundreds of thousands of California youths losing access to a cherished sport shows a lack of knowledge and appreciation for this sport. “Guns are not toys – they are deadly weapons,” said one Assemblymember. “California has some of the strongest gun laws in the country and it is unconscionable that we still allow advertising weapons of war to our children.”
On its website, California State High School Clay Target League president John Nelson countered: “The League is the safest sport in high school. Over 1,500 schools across the nation have approved our program. Hundreds of thousands of students have participated, and there has never been an accident or injury.”
These are not weapons of war, and California high school students won’t be waging one anytime soon. Sporting organizations use scaled-down or modified firearms that are appropriate for younger users. All this law has done so far is criminalize speech in a way that denies safe and supervised sports to youth, while not touching committed gun criminals.
In their haste to place new restrictions on guns, legislators in Sacramento have recently run roughshod over the freedom of speech protected by the First Amendment. This is a byproduct of enacting AB 2571, a law prohibiting the marketing of firearms or related products in a manner that “reasonably appears to be attractive to minors.”
The law is part of a broader series of initiatives by California lawmakers adopted in the name of preventing gun violence in the wake of a series of devastating shootings across the country. While Protect The 1st supports focused initiatives to reduce the criminal use of guns, vague legislation targeting speech about lawful products because they might appeal to a lawful subset of gun users – with at best dubious impact on illegal shootings – infringes on the First as well as the Second Amendment rights of Americans.
Among the various problems with California’s new anti-marketing law is that it is overly broad, has serious consequences for lawful gun users in wholesome youth groups and sporting activities, and chills a tremendous amount of legitimate speech in a viewpoint discriminatory manner.
For example, the law prohibits “images or depictions of minors in advertising and marketing materials to depict the use of firearm-related products." But many groups, from sporting associations to the Boy Scouts, use such advertising to generate interest in organizations that give youth much-needed structure, companionship, and character-building activities.
One such group is the California Grizzlies Junior Rifle Program, “a sports program consisting of youths aged 13-20 and focused on providing leadership development in the training of firearm safety, marksmanship, and competition to encourage personal growth, self-discipline, responsibility, team, and life skills development.”
Until recently, the front page of the Grizzlies website featured an image of several youth members sitting together. Now, the entire website is inaccessible and displays a message: “Due to recent California legislation, we are making some updates to our site. We will be back shortly.”
California’s new law sharply proscribes the ability of groups like the California Grizzlies to promote their youth organization in the state or to obtain sponsors for its youth sporting events. Indeed, it even seems to restrict the group from selling T-shirts and hats with its name or the name of various events on them. Of course, the law has no impact on groups or marketing that criticizes guns or shooting events, and thus commits the cardinal First Amendment sin of viewpoint discrimination. Ultimately, it curtails such a tremendous amount of speech that it could mean the death of some sports and sporting groups entirely.
California is not the only state cracking down on Second Amendment rights by targeting those of the First.
In New York, lawmakers have passed a new requirement that citizens seeking gun permits must surrender their social media accounts for review, without probable cause or a warrant for such an intrusive invasion of privacy. Although touted as an attempt to detect missed warning signs about when someone might commit gun violence, the law would give enforcement officials an unprecedented window into the political and religious beliefs and associations of American citizens.
The outcome evokes the Philip K. Dick story and Steven Spielberg movie, Minority Report, in which people are arrested not because they have done anything wrong, but because of a prediction that they might do something wrong in the future. New York’s law promises to be just as invasive as Minority Report’s enforcement against “precrime,” but a lot less effective. And such an intrusion is far more likely to be abused for political purposes, as history has repeatedly shown with past efforts by the FBI and other agencies to monitor and track political associations.
While legitimate attempts to curtail America’s troubling spate of unlawful gun violence are vital, they can never come at the expense of our Constitutional rights or involve overbroad restrictions on the rights of citizens who have done nothing wrong. Such rules must be more narrowly tailored to protect the rights of all Americans.
With this year’s U.S. Supreme Court term now complete, we are pleased to report that Empirical SCOTUS has determined that Protect The 1st ranks 6th in the nation in the filing of amicus briefs.
Only five organizations, which included the U.S. government and the U.S. Chamber of Commerce, filed more briefs. In a little more than one year, Protect The 1st has proven to be competitive and effective in terms of wins as well as in terms of volume.
Much of the logic and actual language offered by Protect The 1st appeared in five winning cases — FEC v. Cruz, Ramirez v. Collier, Carson v. Makin, Kennedy v. Bremerton School District, and Shurtleff v. Boston. In each instance, Protect The 1st anticipated the Supreme Court majority’s reaction against sudden and dramatic curtailments of the freedom of speech and religion. In FEC v. Cruz, the Court even cited Protect The 1st's brief.
From post-election contributions to a coach denied personal prayer, to the religious rights of a prisoner on death row, to a Maine tuition assistance program denied to religious schools, to a public flagpole at Boston City Hall, we helped define restrictions in terms of First Amendment rights ranging from political speech to religious exercise. We are proud to have helped guide decisions to uphold constitutional rights in each of these landmark cases.
Protect The 1st will build on these efforts, continuing to urge the courts to defend the five enumerated rights of the First Amendment for all Americans.
Oklahoma law allows for individuals to bring a lawsuit if they believe someone has obtained an abortion or assisted someone in obtaining an abortion. This citizen-enforcement provision in Oklahoma’s strict abortion law is leading to a climate of fear in which individuals and institutions must curtail their speech – or risk becoming the targets of ruinous litigation.
Whatever one’s views on abortion – and members of Protect The 1st are pro-life and pro-choice – we all agree that empowering citizens to regulate what can and cannot be said with lawsuits is a remarkably bad idea sure to yield bad results.
Case in point: In July, library workers in the Oklahoma Metropolitan Library System (MLS) were instructed not to provide abortion-related information to the public. The order follows a six-week abortion ban signed by Oklahoma Governor Kevin Stitt, as well as Oklahoma’s “trigger law” total abortion ban, which was activated after the Supreme Court in Dobbs overturned Roe v. Wade in June.
The order pertains to potential liability concerns. One internal email reads: “If a staff member gives any information on how to obtain an abortion, then that person may be found personally liable and will also make MLS liable … Civil penalties include a $10,000 fine plus jail time and the staff member will lose their job due to being informed by MLS and disregarding the warning.”
A library resembles a limited-purpose public forum in which librarians are tasked with answering (though not initiating) questions. The state government, as the manager, has the right to set the scope and character of employees’ actions in fulfilling that task. The problem with the Oklahoma law, whatever one thinks of abortion, is that it allows litigious individuals to define the acceptable limits of speech. Thus, this law clearly abridges the First Amendment.
After the Supreme Court’s Dobbs ruling, state senators in South Carolina introduced legislation that would make it a crime to provide information over the internet or phone about how to obtain an abortion. It would also make it a crime to host a website that is “reasonably likely to be used for an abortion” directed at pregnant women in the state. On a different controversial topic, California just outlawed “marketing” guns to youth, which restricts speech centered around rifle and sports clubs for young people.
Such efforts to regulate speech about any controversial topic are misguided and veer in the direction of a police state. Once restrictions on speech are regarded as acceptable, don’t be surprised when lawmakers on all sides wield them against political opponents.
Protect The 1st praised the Tenth Circuit Court of Appeals for its reversal last week of a long-standing refusal to acknowledge a First Amendment right-to-record the police when they are going about their official duty. Just a few days before, however, the State of Arizona moved in the opposite direction by placing new restrictions on the right to record.
The new law allows police to charge people with a misdemeanor who record them from within eight feet. The law does make exceptions that include those in a vehicle or enclosed structure. But critics still call the law overly broad and note the importance of citizen recording, especially when police bodycams go on the fritz.
The general counsel of the National Press Photographers Association says the law is “unworkable” because moving events like protests can bring journalists in and out of the eight-foot-range. An attorney with the ACLU in Arizona, K.M. Bell, told NPR: “This is content-based restriction, because I can stand three feet away from an officer and play Angry Birds, but I can’t stand three feet away and record them.”
Civil liberties advocates say that they will likely challenge the law in court when the first person is charged after the law takes effect on Sept. 24, 2022.
A federal court in Northern California has reaffirmed the need for holders of copyrights to clear Constitutional hurdles before they can use the Digital Millennium Copyright Act to identify a person behind an unattributed post. The decision reinforces First Amendment protection of anonymous speakers.
The case revolves around speculation about the romantic life of a private equity billionaire and a woman who appears with him in a photo.
Twitter went to court to try to prevent the unmasking of the anonymous poster behind the tweeted images at its @CallMeMoneyBags account. A magistrate ruled that Twitter should disclose the identity of the user because he or she failed to appear in court to affirm that the images were posted in the spirit of fair use. In June, Judge Vince Chhabria of the U.S. District Court of Northern California overruled the magistrate.
Merely copying an image, the judge ruled, does not violate copyright laws if it falls under the fair use doctrine. The judge found that the six tweets in this case “are best interpreted as vaguely satirical commentary criticizing the opulent lifestyle of wealthy investors generally.” The tweet, which accuses the billionaire of infidelity, suggests “that wealth (or private equity) corrupts.”
The implications of this case, however, are limited by the peculiar facts of the case.
Judge Chhabria found that the company that owns the copyright of the images and went to court to unmask the anonymous speaker is, itself, somewhat anonymous and a “mysterious entity.” He noted that the company owning the images, which claimed no association with the billionaire, was formed in the month the tweets were issued, had applied for no copyrights, and was able to present no information about its principals, staff, location, or purpose.
Beyond the disingenuous nature of the plaintiff’s claim is a cautionary outcome for anyone contemplating a similar suit. After the copyright holder complained, Twitter took down the photos. But now, thanks to the Streisand Effect, the lawsuit and accompanying news articles have blasted out the name of the billionaire, linked him publicly to purported infidelity, and shined a spotlight on @CallMeMoneyBags.
Some negative posts are like asbestos tucked away in the ceiling of an old building: The safest thing is to leave it alone.
In the First, Third, Fifth, Seventh, Ninth, and Eleventh Circuit Courts of Appeal, the right to record police officers going about their public duty has been enshrined as critical to the protections of the First Amendment. The Tenth Circuit Court of Appeals in Denver, however, had maintained a hardline stance against the right to film police officers. Despite the weight of six other Courts of Appeal, the Tenth Circuit continued to insist that there was no “clearly established” right.
Now, suddenly, a recent case indicates the Tenth Circuit is close to fully joining its judicial peers by dropping its opposition to the right to record in the case of a self-identified journalist and blogger. On July 11th, the court ruled in Irizarry v. Yehia in favor of a right to record.
The incident in question occurred early in the morning of May 26, 2019, when blogger Abade Irizarry began filming a DUI traffic stop in Colorado. According to the ruling of the court, “Officer Ahmed Yehia arrived on the scene and stood in front of Mr. Irizarry, obstructing his filming of the stop. When Mr. Irizarry and a fellow journalist objected, Officer Yehia shined a flashlight into Mr. Irizarry's camera and then drove his police cruiser at the two journalists.”
PT1 welcomes the court’s adjustment on the right to record police activity, fundamental to the First Amendment and to Americans’ ability to protect themselves in court against potential police misconduct. The Tenth Circuit specifically cited the rulings of other Courts of Appeal, indicating that the right to record may be gaining traction, especially amid the public backlash against police misconduct in the wake of the killing of George Floyd.
According to the Tenth Circuit, the right is still “subject to reasonable time, place, and manner restrictions.” But the court concluded: “Based on First Amendment principles and relevant precedents, we conclude there is a First Amendment right to film the police performing their duties in public.”
In a free society that holds authority accountable, that is as it should be.
As the centrifugal force of polarization makes blue states bluer and red states redder, both blue and red are showing a desire to curb each other’s freedom of speech.
Late last year, we reported on the action of U.S. District Judge Robert Pitman to block a Texas law designed to crack down on the perceived censorship by large social media companies of conservative posts and ideas. Judge Pitman reminded Texas Republican leaders that the same First Amendment that protects Americans against government censorship also protects the rights of companies to moderate their content.
The U.S. Supreme Court in May further blocked the Texas law from taking effect, sending it back to federal court for further deliberations.
In Washington state, a Democratic state legislator is gaining support for a bill that would make it a crime, publishable by up to a year incarceration, for a candidate or elected official who “knowingly makes false statements or claims regarding the election process or election results, which statement or claims are made for the purpose of undermining the election process or election results and are directed to inciting or producing imminent lawless action …”
The appeal of this reaction to the violent Capitol Hill mob on January 6, 2021, is obvious. But the bill and the thinking behind it is a menace to Americans’ freedoms. Let us count the ways.
In New York state, a similar bill would prohibit online platforms from algorithmically promoting categories of information, including “a false statement of fact or fraudulent medical theory that is likely to endanger the safety or health of the public.” Here, again, are we sure we always know what is a lie and what is the truth? With fast evolving diseases, science is always shifting. The claim that the coronavirus could be the result of a lab leak was once vigorously censored by social media and denounced by the CDC until the weight of evidence forced a reassessment by U.S. government agencies that a lab leak is in fact a viable theory.
In a comprehensive wrap-up of state bills that criminalize speech, New York Times writers Steven Lee Myers and Cecilia Kang predict that “the cacophony of state bills and legal maneuvers … could reinforce information bubbles in a nation increasingly divided over a variety of issues – including abortion, guns, the environment – and along geographic lines.”
Such anti-speech bills of the liberal and the conservative varieties aim to take America back to the failed approach of the Alien and Sedition Acts of the John Adams administration, or the Red Scare crackdown in the aftermath of World War One. Truth remains the best antidote to lies.
Protect The 1st welcomes the recent decision by the Ninth Circuit (of all places!) in Butcher v. Knudsen, striking down a provision in Montana campaign finance law that is so vague and restrictive that it harms the First Amendment’s guarantee to protect “core political speech.” (A hat tip to Eugene Volokh of Reason Magazine for detailing the arguments of this case.)
Ed Butcher and Lonny Bergstom created a website that tracks the voting records of Montana’s Republican state legislators. The two were invited to discuss their website and its findings by several Republican groups in the state. During their travels, Butcher and Bergstrom billed several expenses for gas, food, and lodgings. The Montana Commissioner of Political Practices determined that these incidental expenses made the pair a “political committee” under Montana law. Butcher and Bergstrom were subsequently subject to a retroactive civil fine and civil prosecution.
The court held that Rule 44.11.603, the state law that determines whether certain “acts, contributions, or expenditures are de minimis and therefore do not trigger” campaign finance law, is unconstitutionally vague. Butcher and Bergstrom argued that they were not given fair notice that their conduct would cross a line.
Of the five freedoms enumerated in the First Amendment, the framers of the Constitution were most adamant about protecting political speech. Montana’s rule not only runs roughshod over the First Amendment, but it also runs afoul of the Due Process Clause of the Fourteenth Amendment, in which protections against vague laws are of key importance. A law that can punish two citizens by turning them into a political committee simply because they billed expenses in the exercise of their First Amendment rights is expansive enough to threaten the rights of all of us.
Judge William Fletcher in his dissent does not contest that Butcher and Bergstrom weren’t given fair warning. He also agrees that volunteers do not become a political committee simply by spending more than $250. Judge Fletcher nonetheless in his dissent found against Butcher and Bergstrom because the pair “by their own admission” did not incur travel costs as volunteers. Judge Fletcher calls the two “sophisticated political actors” who “encouraged Republican groups in Montana to vote for or against various Republican candidates based on their past voting patterns in the Montana legislature.” As such, they did not do so as “volunteers,” but as a “political committee.” The gall of them! Unregulated individuals going hither and yon to speak out on the voting records of legislators!
Judge Fletcher takes no consideration of the impropriety of the lack of fair notice. His dissent leaves worrying room to expand application of the law to anyone who spends money while traveling for political causes. Protect The 1st supports the court’s decision to strike down this provision.
This essay by UCLA Anthropology Professor Joseph Manson – who retired early to escape the threatening atmosphere of modern academia – details the destruction of an academic career and reputation in horrifying detail. And he explains why the oppressive atmosphere in the academy is only going to get worse.
The U.S. Supreme Court’s grant of a writ of certiorari in 303 Creative v. Elenis sets up a precise distinction between the free exercise of religion and free expression under the First Amendment and invidious discrimination. We look forward to the upcoming oral arguments.
Lorie Smith is a web designer who launched 303 Creative LLC in 2012. She wanted to expand her business into the weddings industry, but was blocked by the State of Colorado’s Anti-Discrimination Act (CADA). As an observant Christian, Smith believes that the nature of marriage is between one man and one woman and felt morally unable to design websites that would celebrate a same-sex wedding. Smith filed a lawsuit in 2016 but lost in both the District Court and before the Tenth Circuit Court of Appeals.
Protect The 1st supports Lorie Smith’s suit to protect her First Amendment rights to free speech and free expression. The right to practice one’s sincerely held religious beliefs, and to be protected from unnecessary government intrusion, is fundamental to our constitutional order and our pluralistic society. Protect The 1st believes the Court is moving in the right direction in cases protecting the constitutional protections available for expressive content and religious exercise.
We also emphasize that this case presents an opportunity to devise a moderate, sensible approach to religious exemptions. Smith’s case is about the expression inherent to creating and publishing a website that celebrates views contradictory to the religious beliefs of the designer. The State of Colorado would be violating Smith’s right to free expression as an artist by banning Smith from the weddings industry or by compelling her to create these websites. But a chef could not – and should not – be allowed to exclude gay people from his restaurant under the same reasoning. It is our hope 303 Creative creates a strong but narrowly tailored exemption which protects the artistic expression Americans of all creeds. But, for this limited category of exemption to work under the rule of law, it must remain precisely that: limited.
Protect The 1st congratulates Justice Ketanji Brown Jackson on her swearing in. Now that she is on the nation’s highest court, Justice Jackson will be able to employ her well-honed jurisprudence to set strong precedents. We are hopeful Justice Jackson will use her authority to vigorously defend all the enumerated rights of the First Amendment.
SCOTUS Signals a Touchdown for Religious Liberty Ruling on “Praying Coach” Case Parallels Protect The 1st Brief
Kennedy v. Bremerton School District
The Supreme Court’s 6-3 majority opinion in favor of the right of Bremerton High School football coach Joseph Kennedy to pray after games on the 50-yard line is big win for religious liberty.
The issue is important because it involves how public institutions should manage the balance between the First Amendment’s guarantees of the free exercise of religion and speech against its prohibition of the establishment of religion. For decades, under the Lemon test, religious expression had come to be treated as radioactive material to be handled with an iron apron and tongs.
The majority opinion states:
“Both the Free Exercise and Free Speech Clauses of the First Amendment protect expressions like Mr. Kennedy’s. Nor does a proper understanding of the Amendment’s Establishment Clause require the government to single out private religious speech for special disfavor. The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike.”
The majority rejected the idea that the prayer constituted government speech merely because Coach Kennedy was a government employee. “When Mr. Kennedy uttered the three prayers that resulted in his suspension, he was not engaged in speech ‘ordinarily within the scope’ of his duties as a coach … He did not speak pursuant to government policy. He was not seeking to convey a government-created message. He was not instructing players, discussing strategy, encouraging better on-field performance, or engaged in any other speech the District paid him to produce as a coach.”
This logic led the Court to adopt a view that is almost a verbatim quote from the amicus brief Protect The 1st filed in this case. The court ruled that if the standard sought by the school district held, then:
“On this understanding, a school could fire a Muslim teacher for wearing a headscarf in the classroom or prohibit a Christian aide from praying quietly over her lunch in the cafeteria.”
Quoting the First Amendment – “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech” – the majority opinion concluded: “A natural reading of that sentence would seem to suggest the Clauses have ‘complementary’ purposes, not warring ones where one Clause is always sure to prevail.”
Protect The 1st applauds the Court for standing up to protect private speech and the free exercise of religion.
The U.S. Supreme Court, in a 6-3 decision today, upheld the right of parents who wish to send their children to religious schools to enjoy the same access to state-sponsored tuition assistance programs as parents sending their children to secular schools.
The majority opinion in Carson v. Makin followed the reasoning that appeared in an amicus brief filed by the Protect The First Foundation – that the First Amendment’s Free-Exercise Clause requires governments to respect the liberty of parents to make the best choice to educate their children consistent with their faith.
The case arose from the refusal by the State of Maine to allow parents who qualify for tuition assistance programs to use their funds to send their children to religious schools that dare to impart religious teachings and have religious activities. Maine insisted on this standard even though these schools met all state education certification standards.
Maine defended its position by claiming it did not discriminate against religious schools, only schools with “sectarian” religious teachings and practices. The Court saw through Maine’s illogical standard – that a school could be Catholic in name but could not hold a Bible class or administer communion.
The majority also agreed that Maine’s subsidy for attendance at religious schools would not violate the Establishment of Religion Clause. Rather, the offense to the Constitution was a state regulator in Augusta, Maine, reviewing schools’ curriculum and deciding if a school is sufficiently irreligious or too religious. Writing for the majority, Chief Justice John Roberts concluded: “Maine’s ‘nonsectarian’ requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment.”
The majority opinion referred to two precedents in which similar principles were applied. In Trinity Lutheran Church of Columbia, Inc., v. Comer (2017), the Court struck down a Missouri program that excluded religious organizations from a grant for nonprofits that installed cushioning playground surfaces made from recycled rubber tires.
More akin to Makin is Espinoza v. Montana Dep’t of Revenue (2020) concerning a state program that provided tax credits to donors who sponsored scholarships for private school tuition.
In today’s opinion, the majority declared that the “unremarkable” principles of Trinity Lutheran and Espinoza mean that a state “need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
With a solid win for religious liberty in Carson v. Makin, we can expect future cases will explore the freedom of publicly funded religious charter schools to include religious instruction.
San Jose School District Disqualifies Fellowship of Christian Athletes, Approves Satanic Temple Club Established to Mock Their Christian Beliefs
The Fellowship of Christian Athletes and the Becket legal team are vowing to appeal a ruling last week by Federal Judge Haywood Gilliam for upholding the cancellation of Fellowship of Christian Athletes clubs by the San Jose School District in California.
The cancellation began when a teacher at Pioneer High School in that district posted a statement on his classroom whiteboard objecting to the recognition of the Fellowship of Christian Athletes (FCA) as a school club. The FCA is open to all and asks its members to treat everyone “with love, dignity and respect.” It reserves its leadership posts for student athletes who lead the groups in prayer, worship, and religious instruction. They must adhere to its Statement of Faith, which upholds traditional Christian tenets such as the Holy Trinity and the Divinity of Christ. The FCA also holds a traditional view on marriage.
The Pioneer High teacher in this case announced that FCA’s views are “bullshit” and should be barred from San Jose’s public high schools. Student reporters from the school newspaper and others are alleged to have disrupted an FCA meeting, snapping pictures in the faces of the FCA members. A Pioneer teacher in attendance told Espiritu that this was “intimidating” and left FCA students visibly “embarrassed, harassed and scared.”
District officials responded by denying benefits to FCA clubs, called for on-campus protests for FCA and gave official recognition to a new student club – the Satanic Temple Club – formed with the specific and announced purpose of mocking FCA’s beliefs and Christianity.
The banning of the Fellowship of Christian Athletes is the first and only time the district has ever “derecognized” a student club for asking its leaders to embrace the club’s views.
Last week, Judge Haywood Gilliam of the Northern District of California held that the action of the San Jose School District did not preclude religious speech but rather prevented acts of discrimination. He refused to issue a preliminary injunction of the club’s banishment. Judge Gilliam recognized no contradiction in applying this standard to the FCA, while allowing other clubs – the Latino Male Mentor Group, the Girl’s Circle, and the National Honor Society – to set membership criteria by sex, GPA, and other standards.
The Ninth Circuit should grant the request for a preliminary injunction because the district’s actions violate statute and the Constitution.
First, the district ruling violates the Equal Access Act – a federal statute prohibiting school districts from derecognizing clubs “on the basis of the religious, political, philosophical, or other content of the[ir] speech.” Second, it violates the Free Exercise Clause of the First Amendment, banning an after-school group on the basis of its religion. And third, it violates the Free Speech Clause of the First Amendment, punishing a viewpoint on marriage held by millions of adherents of Christianity, Islam, and Judaism (and not, by the way, related to the purpose of this student forum, which is centered around Bible-reading and prayer).
Becket is appealing Judge Gilliam’s refusal to set a preliminary injunction of the clubs’ cancellation to the Ninth Circuit Court of Appeals. If the Ninth Circuit does not act, the Fellowship of Christian Athletes faces another year or more of an ongoing violation of their First Amendment and statutory rights.
In the wake of Georgetown Law’s Ilya Shapiro debacle, the whole university seems to be setting itself up for endless controversy, recrimination, and lawsuits over free speech. This is apparent in the Georgetown University’s Institutional Diversity, Equity & Affirmative Action (IDEAA) harassment report that spells out policies that now apply to all professors.
Kudos to Eugene Volokh for obtaining a copy of this policy and quoting from it. This policy on “harassment” and prohibited speech now extends to any speech that expresses views that sufficiently offend “reasonable” students “in the impacted individual’s position” based on their identity group membership.
This policy prohibits offensive speech that relates not just to race or sex, but also to “age … disability, family responsibilities, gender identity and expression, genetic information, marital status, national origin and accent, personal appearance, political affiliation, pregnancy … religion … sexual orientation, source of income, veteran’s status or other factors prohibited by federal and/or District of Columbia law.”
These prohibitions extend to the expression of views in op-eds, conferences, scholarship, television appearances and the like.
Volokh raises many examples of language, some hypothetical and some real, that could run afoul of Georgetown’s speech code. One example: A Georgetown law professor opined that there is “only one political party in this country, the Democrats. The other group is a combination of a cult and an insurrection-supporting crime syndicate.”
Under the standards enunciated by Georgetown, this would denigrate Republicans based on their “political affiliation” (which, Volokh notes, means party affiliation under D.C. law). Many Republicans would be offended by this statement. But should law professors be fired for personal venting on politics? Yet don’t be surprised that the next time a Georgetown professor sounds off on Republicans if some group, perhaps the Georgetown College Republicans, will find a lawyer willing to hoist that professor with his own petard.
Volokh concludes: “The important thing here, I think, is just how much speech is now in peril, going forward, for Georgetown professors generally (especially the ones who lack tenure, but even the tenured ones.)”
In a 5-4 vote, the U.S. Supreme Court today made the right call in temporarily blocking a Texas social media censorship law that would have stripped big platforms of any ability to moderate their content.
Industry representatives argued that if Texas HB20 was not stayed, they would be compelled by law to run Russian propaganda on Ukraine, ISIS calls for violence, neo-Nazi posts denying or supporting the Holocaust, and posts encouraging children to take up risky behaviors.
It is important to remember that some speech actually is dangerous. To force companies to post such speech would gut their First Amendment right to moderate their sites. We are hopeful that when a federal judge examines the merits of this law, it will be found to be overweening if not Orwellian.
Social media companies, however, need to acknowledge how they helped create the Texas legislative blunderbuss. Content moderation that sometimes lumps in the merely controversial with the dangerous has understandably outraged many. Given the size of Twitter, Facebook and one or two other big social media networks, to be deposted is to effectively be censored. To be deplatformed can amount to being put out of business and silenced for good.
This is our dilemma. The big social media companies have a First Amendment right not to associate with offensive and dangerous speech. But the practical effect of some of their decisions is to effectively censor a range of viewpoints.
The way to resolve this dilemma is in the approach suggested by the Platform Accountability and Consumer Transparency Act, sponsored by Sens. Brian Schatz (D-HI) and John Thune (R-SD). The PACT Act would require social media companies to give consumers clear standards for the removal of posts in exchange for the liability protection they receive under Section 230 of the Communications Decency Act. Platforms would give users due process, allowing them to appeal for quick resolution of complaints about being moderated out of the discussion.
Texas legislators should reconsider their approach. In fact, regulations are best pursued at the federal level, not on a state-by-state level. Different social media laws in every state would turn the online world into an unreadable and unmanageable patchwork.
Erik Jaffe, policy director of Protect The 1st, drawing on his experience with more than 100 cases before the U.S. Supreme Court, reacts to the leaking of the draft opinion overturning Roe v. Wade, and gives a preview of major cases in coming weeks. He discusses:
Listen to Erik Jaffe, one of the nation’s leading constitutional lawyers, in this interview on the Pacific Research Institute’s Next Round podcast.
Shield of Strength v. United States Department of Defense
“Love bears all things, believes all things, hopes all things, endures all things ...”
1 Corinthians 13
“love is the voice under all silences, the hope which has no opposite in fear; the strength so strong mere force is feebleness: the truth more first than sun more last than star.”
being to timelessness as it’s to time
The sentiment expressed by the Apostle Paul in the New Testament testifies to the power of love, as does the snippet from an e.e. cummings poem. Under the standards set by the Department of Defense (DoD) and its trademark office, the first quote is forbidden because it comes from a religious source, the second is permitted because it is ostensibly secular.
Protect The 1st is joining an amicus brief – drafted by Prof. Eugene Volokh at the UCLA First Amendment Amicus Brief Clinic, together with his students Elizabeth Anastasi, Aaron Boudaie, and Anastasia Thatcher – filed before the U.S. District Court for the Eastern District of Texas to require the government to resolve discrepancies in its treatment of religious speech. The case involves a company, Shields of Strength (SoS), that sells facsimiles of dog tags with the logos of U.S. military services on one side, and inspirational quotes on the other. Because service logos are used, Shields of Strength must obtain permission from the DoD trademark office.
That office routinely approves hundreds of such trademark uses for parades, team uniforms and athletic wear, student-run organizations, and products from jewelry brands to license plates. But DoD policy denies trademark licenses for “any purpose intended to promote ideological movements, sociopolitical change, religious beliefs (including non-belief), specific interpretations of morality, or legislative/statutory change.”
This excludes the use of service trademarks when the back of an SoS dog tag includes a Bible verse. Thus, DoD’s inherently vague standards give it the ability to withhold its approval for the use of its service trademarks where religious speech is concerned. But how can the government assert a justification for denying permission to SoS and its dog tags? No one mistakes the use of trademarked logos on various products – from team jerseys to earrings – to be government speech. Rather, the trademark program is clearly a limited public forum that, by the admission of the services, works with hundreds of companies around the world. Consumers want no more than to honor the services in their own way.
How then can these commercial dog tags be considered government speech? SoS dog tags are not worn instead of military dog tags. They do not identify the wearer. They do not contain government opinion. These dog tags are meant to be worn on the bodies of private people, not displayed to the public like a government-printed license plate. These dog tags are expressive works in which the wearer communicates both patriotism and religiosity.
Courts have held that when the free exercise of religion is at risk, the strictest scrutiny must apply. For all these reasons, DoD’s refusal to let SoS use these marks discriminates against this company and its customers solely due to their religiosity – and thus violates the Free Exercise Clause of the First Amendment.
Oakwood Adventist Academy vs. Alabama High School Athletic Association
The Oakwood Academy Mustangs of Huntsville, Alabama, had fought their way this year to the semi-finals with a chance at winning the state title. This was, in fact, the winningest season for the basketball team of Oakwood Adventist Academy, the nation’s oldest Black Seventh-day Adventist school.
As Seventh Day Adventists, however, the Mustangs must observe the Sabbath that begins on sundown Friday to sundown Saturday. When the schedule for the semi-finals was released, the Mustangs were slated to play at 4:30 on a Saturday afternoon – agonizingly close to sundown, but still daylight … and still the Sabbath.
Then the Mustangs caught a break. Other teams agreed to switch out their times with other teams, avoiding scheduling a game during the Sabbath. This seemed to be a good, all-around solution to everyone except the Alabama High School Athletic Association (AHSAA), which refused to accept a switch that was acceptable to all teams.
The Becket Fund for Religious Freedom is now representing Oakwood Adventist Academy before the U.S. District Court for the Middle District of Alabama, seeking a permanent injunction against the association discriminating against religious requests.
“It’s bad enough that AHSAA would intentionally exclude a religious school for honoring the Fourth Commandment,” said Eric Rassbach, senior counsel and vice president of the Becket Fund. “But it’s worse when the exclusion is entirely unnecessary — like most Americans faced with this issue, the schools had worked out a simple, common-sense solution. But the bureaucrats said no. The First Amendment demands much more.”
Supreme Court Overturns Campaign Loan Repayment Limit
The Supreme Court today in a 6-3 decision overturned Section 304 of the Bipartisan Campaign Reform Act, declaring in a majority opinion that the law impermissibly “burdens core political speech.”
This case, provoked by a deliberate violation of the regulation by Sen. Ted Cruz, concerned whether a candidate for federal office could be repaid after the election for borrowed funds of more than $250,000.
The majority opinion cited our Protect The First Foundation’s amicus brief, which provided evidence that Section 304 inhibits candidates’ speech. As we explained in our brief: “The loan repayment limit … burdens challengers by deterring them from raising money from one of the few sources that may be available to them early in their campaigns: a personal loan.”
Justice Elena Kagan in her dissent claimed that the law prevents “political contributions that will line a candidates’ own pockets.” Writing for the majority, Chief Justice John Roberts responded that “we are talking about repayment of a loan, not a gift.”
Once again, the Court has recognized that many restrictions on campaign spending are restrictions on speech. Protect The 1st is pleased to have contributed to this significant First Amendment victory.