Protect the First Foundation filed an amicus brief in Shurtleff v. Boston on Nov. 22nd in support of petitioners Harold Shurtleff and Camp Constitution. On the same day, the U.S. Department of Justice filed a brief of its own in support of the petitioners.
In this case, the city government of Boston allowed groups that host events on a city plaza to hoist their flags on a city-owned flagpole. Boston’s website states that the flag-raising program commemorates “flags from many countries and communities” with a goal to “foster diversity and build and strengthen connections among Boston’s many communities.” But when Camp Constitution — a group dedicated to celebrating the nation’s Judeo-Christian heritage and the Constitution — sought to fly its flag, the city denied it permission.
The U.S. Court of Appeals for the First Circuit ruled that Boston was permitted to deny the flying of Camp Constitution’s flag (which includes a crimson cross against a blue background). The 1st Circuit reasoned that the decision was permissible because the flag would have been a “powerful governmental symbol” in favor of a religion. (Many have noted the irony of Boston taking this position. Its city flag proclaims in Latin, “God be with us as he was with our fathers.”)
Now the Biden Administration’s DOJ is lining up behind arguments made by Protect the First Foundation and 15 other groups that have filed amicus briefs, including the Becket Fund and the American Civil Liberties Union. The DOJ wrote that the city’s flag-flying program “is not government speech” at all.
The DOJ brief noted that the Supreme Court has “emphasized that the government cannot transform private speech into government speech merely by approving private messages expressed in a forum for private speakers.” Most importantly for free speech and religious liberty, the DOJ brief argues that while some reasonable content- and speaker-based restrictions are allowed in some of these forums, viewpoint discrimination is prohibited. DOJ asserted:
The Court has long held that denying access to an otherwise-available forum simply because of the religious nature of the speech is viewpoint discrimination.
DOJ’s position is rooted in a Supreme Court ruling in Lamb’s Chapel v. Center Moiriches Union Free School District, 508 U.S. 384 (1993) and Rosenberger v. Rector & Visitors of University of Virginia, 515 U.S. 819 (1995). In Lamb’s Chapel, the Court upheld the right of a Christian organization to conduct a series of films and discussions “from a Christian perspective” after hours at a public school otherwise open to many other civic and community organizations. And in Rosenberger, the Court held that the University of Virginia unconstitutionally discriminated based on viewpoint when it excluded religious activities from otherwise available funding.
Bottom line: The Justices of the Supreme Court should reaffirm that when government treats religious speakers less favorably than nonreligious speakers, it is engaging in impermissible viewpoint discrimination.
Becket Law recently released its third Religious Freedom Index, 21 questions put to a nationally representative group of 1,000 American adults. The results portray a nation that values the contributions of religious organizations to the well-being of the United States.
The poll also shows that Americans strongly support a level playing field for faith-based organizations, wanting the government to partner with them on fair and equal terms. Becket’s Religious Freedom Index demonstrates a widespread desire to hear faith-based opinions and worldviews, important to many Americans in these disruptive times.
Religious Freedom: Overall, backing for religious freedom increased in this year’s index, pushing it to a new high of 68 percent on a 0-100 scale.
Level Playing Field: More Americans than ever before responded that they believe religious organizations should be just as eligible to receive government funding as non-religious organizations – a six-point increase from the previous year to a high of 71 percent.
Value of Free Speech: 62 percent of respondents believe people of faith should be free to voice their religiously based opinions in public, even on controversial topics.
Parents and Children: 63 percent of respondents said that parents are the primary educators of their children and should have the final say in what their children are taught.
Closures: In some parts of the United States during the pandemic, there was an imbalance between how local and state governments treated many commercial and cultural activities and religious ones when it came to pandemic management and closures. In Becket’s poll, a majority said that funerals and religious services should be considered essential activities.
Becket’s Religious Liberty Index demonstrates that Americans have a growing appreciation of the role of religious organizations and religious liberty. Most Americans still agree with Tocqueville’s adage: “The safeguard of morality is religion, and morality is the best security of law and the surest pledge of freedom.”
The Filming of George Floyd’s Murder Would Have Been Illegal in Boston
James O’Keefe and his Project Veritas brand of gotcha reporting has twice now made him the test case of the boundaries of First Amendment protection of journalists. “You might love, hate or simply want to ignore Project Veritas,” said Gene Schaerr, Protect The 1st general counsel. “But their rights are everyone’s rights.”
The recent raid on O’Keffe’s home by the FBI and the confiscation of his cellphone provoked critical comment from the American Civil Liberties Union and New York Times media columnist Ben Smith. Less noticed was the denial today by the U.S. Supreme Court of Project Veritas Action Fund v. Rollins, in which that conservative activist group sought to overturn a ruling from the U.S. Court of Appeals for the First Circuit.
Unlike many other federal courts, the First Circuit ignored the threat to the First Amendment posed by a Massachusetts law that makes it illegal for anyone but law enforcement officers to record others without their permission.
In our amicus brief, Protect The 1st noted a long history of the public interest being served by the exposure of misdeeds, from the undercover reporting of Nellie Bly in 1887 to 18-year-old Darnella Frazier, who received a Pulitzer Prize citation for recording the murder of George Floyd by a policeman in Minneapolis in 2020.
Protect The 1st will continue to defend the standard in many parts of the country that affirms Americans’ right to record. We will continue to look for other opportunities to encourage the Court to resolve the important legal issues presented in Project Veritas’ petition.
Protect the First Foundation Files Brief In Boston Flagpole Case: “The Courts Have Turned the First Amendment on Its Head”
When the U.S. Supreme Court hears oral arguments in Shurtleff v. City of Boston on Jan. 18, 2022, it will examine a case in which Boston city officials allowed hundreds of groups that applied to fly a flag on a city flagpole to do so – with one exception.
Boston had designated a flagpole near City Hall Plaza to be available for private persons and groups for events. From 2005 to 2017, Boston allowed 284 flag raising events, from a gay pride flag to a Bunker Hill Flag, with no prior review of their messages. No applications were rejected. Then came Camp Constitution, a group whose mission is to “enhance understanding of the country’s Judeo-Christian heritage, the American heritage of courage and ingenuity, the genius of the United States Constitution, and free enterprise.” The group wanted to host an event celebrating the ”historical civic and social contributions of the Christian community to the City of Boston, the Commonwealth of Massachusetts, religious tolerance, the Rule of Law, and the U.S. Constitution,” by hosting an event at Boston’s City Hall Plaza that would raise “the Christian Flag,” which displays a red Latin cross.
But the Boston city government refused to grant permission, claiming it had a policy of not allowing religious flags to be raised on city-owned flag poles—even though many of the flags raised previously, including Boston’s own flag, display religious words or imagery. Harold Shurtleff and other members of his Camp Constitution group sued. The U.S. Court of Appeals for the First Circuit upheld the city’s decision, holding that when private groups and individuals raised flags on City Hall Plaza, it was Boston, not those groups or individuals, that did the speaking. That meant, in the First Circuit’s eyes, that Camp Constitution’s request wasn’t protected by the First Amendment.
In an amicus brief filed in support of Shurtleff and Camp Constitution, Protect the First Foundation demonstrates that: “By reducing the amount of protection speech receives as governmental regulation of that speech increases, the courts have turned the First Amendment on its head.” Protect The 1st shows that the First Circuit Court erred in defining the flagpole as “government speech.” If that ruling is correct, then the court is forcing the Boston taxpayers to endorse all the messages contained in the 284 flags that were flown. It is easy to see how obnoxious that doctrine would be in a free society:
If in 2020 the White House had hoisted a flag proclaiming “Trump 2020—Keep America Great,” it would have been clear that the government was using taxpayer-funded property to express a political message. Likewise, the Commonwealth of Virginia surely could not use state funds to erect a giant billboard reading, “Virginia Says Keep Our State Blue!”
Such efforts have the self-evident goal of using the compelled funding and machinery of the State to manipulate public opinion.
Protect The 1st’ Foundation quoted Thomas Jefferson, who wrote that “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhor[s] is sinful and tyrannical.” If the First Circuit is correct, then Boston is forcing taxpayers to pay for government speech that they may or may not agree with.
In fact, as the brief asserts, the City of Boston was merely allowing private speech on a public venue. “If private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints.” And because the flag raisings are not government speech, Boston can’t choose to exclude disfavored viewpoints—including religious viewpoints.
But that’s exactly what Boston did, which is why the Supreme Court should reverse the First Circuit.
Protect The 1st vigorously argues that every business, from a billboard operator to the major social media platforms – YouTube, Facebook, Twitter, et al. – enjoy full and unfettered First Amendment protections even (or especially when) they annoy or offend us.
We also believe that platforms that are so dominant in the national discussion have a civic responsibility to ensure that their content moderation process is broad, allowing for every viewpoint that is not explicitly dangerous. At a time when social media’s reputation rivals that of Big Tobacco a generation ago, these companies would be practicing good corporate risk management to be more responsible.
Instead, social media platform operators seem to go out of their way to antagonize and alienate, as if they want to be broken up, heavily regulated and have their speech rights curbed by an angry Congress.
Case in point: Congressman Darrell Issa, Republican from California. In July, Rep. Issa spoke to a government technology conference, EDGE2021 in Las Vegas. In his speech, he touted the effectiveness of America’s vaccines and their superiority over the Russian Sputnik vaccine.
It was anything but an anti-vaccine rant. His speech was, Rep. Issa said, “about data and was a very nonpartisan speech.”
Nevertheless, YouTube took it down for violating its “community guidelines.”
After being challenged in the national media by Rep. Issa, YouTube apologized. Much of the issue with content moderation seems to be with the imperfect analysis of human speech by algorithms.
Many proposals have been floated to inject government regulation of social media content, including ill-advised state laws in Texas and Florida that attempted to force coverage of political viewpoints and candidates.
A better approach, one that would respect the First Amendment, is the Platform Accountability and Consumer Transparency Act, or PACT Act, sponsored by Sens. Brian Schatz (D-HI) and John Thune (R-SD). Section 230 of the 1996 Communications Decency Act currently grants social media companies liability protection in court for speech generated by users. The PACT Act would require social media companies that enjoy this liability protection to have clear and easy to understand standards for the removal of posts. And these platforms would have to give users due process, allowing them to appeal for a quick resolution of a complaint.
Until such a solution can be crafted, PT1st strongly advises the leading social media companies to correct imbalances in their content moderation before Congress fixes it for them.
Legacy of a Desecration
Protect The 1st works with a coalition of religious liberty advocates to support the efforts of the Apache Stronghold to prevent the utter destruction of their sacred site.
This site in the Tonto National Forest, known as Oak Flat, is the sole place for the Western Apache to perform key religious ceremonies. What Mount Sinai is for the Jews and the Vatican is for Catholics, Oak Flat is for the Apache.
In a last-minute, midnight Congressional deal, the Apache’s sacred land was targeted in a land swap deal to allow a foreign mining consortium – Resolution Copper, combining mining companies Rio Tinto with BHP – to obliterate that site. This would be a staggering violation of religious freedom and the Religious Freedom Restoration Act (RFRA), the U.S. Constitution and solemn treaty agreements between the Apache and the U.S. government.
As the Apache exhaust their judicial and administrative remedies, Protect The 1st provides the following graphic – courtesy of the Becket law firm – that shows exactly what this Rio Tinto-BHP project will leave in its wake.
When the U.S. Supreme Court heard oral argument last Wednesday in Austin, v. Reagan National Advertising, a case asking about the city of Austin’s restriction on billboards and signage, many of the Justices’ questions echoed themes advanced in the amicus brief filed by Protect The First Foundation.
Austin city code prohibits signs from displaying messages that advertise “a business, person, activity, goods, products or services not located where the sign was installed.” A sign cannot even direct people to another location. Such “off-premise” signs are forbidden, with allowance made only for older, grandfathered signs.
Protect The First Foundation’s brief explained that regulations “that turn on the content of speech are particularly troubling and prone to abuse, even where they are not overtly based on the viewpoint of the restricted speech. Often, a content restriction is merely a proxy for viewpoint discrimination.”
The Supreme Court unanimously reached a similar conclusion in 2015 in Reed v. Town of Gilbert, when it held that an Arizona town could not impose different restrictions on the display of temporary signs based on the messages they conveyed. The Fifth Circuit applied this logic to the Austin law and held that any time an officer must read a sign to apply the law, the law is content based and must meet exacting strict scrutiny under the First Amendment.
Justice Clarence Thomas defined the issue in culinary terms, asking if Austin’s famous Franklin BBQ could post a sign at the restaurant, but could not post such a sign somewhere else. The attorney for Austin said that was the case under the city code. Justice Thomas pointedly asked if location-based regulation of speech is also a content-based distinction:
“So, in other words, I can’t say certain things unless I’m at a certain location? I can’t say ‘Eat at Franklin’s’ unless I’m at Franklin’s?”
Justice Brett Kavanaugh asked whether strict scrutiny would apply if the standards were content-based. He also asked whether, if the standards are not content-based, the weaker standard of intermediate scrutiny apply. Austin’s attorney agreed strict scrutiny would be tough for a signage regulation to meet and argued for intermediate scrutiny.
Kannon Shanmugam, the attorney for Reagan National, a family-owned business in Austin, saw an opening. He said:
“Under this Court’s decision in Reed, Austin’s distinction between signs advertising on-premises and off-premises activities is content-based … A through line of this Court’s First Amendment cases is that whatever the standard of review, a regulatory distinction between different types of speech has to bear some relation to the governmental interest asserted.”
He then put forward an example of how content cannot be separated from Austin’s regulation:
“[I]f you think about it from the perspective of the owner of the premises, that owner’s speech is being limited and plainly being limited on the basis of content … Let’s say you’re a church and you want to advertise the services that take place every Sunday on your premises. Of course, under Austin’s ordinances, you can do that.
“But what you can’t do is to use your digital sign to advertise an interfaith service that might be taking place at the Jewish synagogue down the road. That is a limitation on the subject matter of your speech.”
The Protect The First brief took an approach that was as broad as the synagogue example was specific. The brief compared the compromising of First Amendment rights in the Austin case to the compromising of the Fourteenth Amendment’s Equal Protection and Due Process Clauses in the landmark case Loving v. Virginia, which struck down restrictions on interracial marriage.
That the substance of the content restriction depends upon the non-content fact of location, and varies with every location involved, does not make it content neutral any more than the restrictions on interracial marriage struck down in Loving were race-neutral because they applied to persons of any race and varied based on the race of their prospective spouse.
From the oral argument, there is a significant chance the Court will agree with Protect The First Foundation that the Austin code is subject to and fails First Amendment strict scrutiny. But even if strict scrutiny does not apply, we demonstrated the code should fail even lesser scrutiny because the city has not identified any valid, specific and genuine government interest in limiting signs to messages about their specific location.
Analisa Torres, a federal judge from the Southern District of New York, made the right call late last week in ordering the Department of Justice to stop the “extraction and review” of contents from two cellphones belonging to Project Veritas founder James O’Keefe.
This order followed a raid on O’Keefe’s home and that of two of his colleagues presumably to learn the identities of “tipsters” who gave the conservative journalist access to the diary of President Biden’s daughter, Ashley Biden. The FBI launched a pre-dawn raid on O’Keefe’s home, handcuffed him and removed his electronic devices.
O’Keefe told Fox News:
“They confiscated my phone. They raided my apartment. On my phone were many of my reporters’ notes, a lot of my sources unrelated to this story and a lot of confidential donor information to our news organization.”
O’Keefe acknowledges Project Veritas was given the diary, but insists he had no idea that the diary was stolen. He also maintains that he had turned it over to law enforcement, sought to turn it over to a lawyer for Ms. Biden, and had not published its contents.
Provided that O’Keefe is telling the truth that he or his colleagues were not involved in skullduggery behind the theft of a diary, his actions were no different from that of many other journalists. ACLU, which is no admirer of O’Keefe and said a reasonable observer could question if Project Veritas’s activities are journalism, nevertheless condemned the actions of the FBI as bad precedent. ACLU’s Brian Hauss wrote:
"Unless the government had good reason to believe that Project Veritas employees were directly involved in the criminal theft of the diary, it should not have subjected them to invasive searches and seizures."
The same justification for rifling through physical or digital files in this case could have been made for any number of award-winning investigative works by The Washington Post and The New York Times, where anonymous sources provided access to information. Perhaps with this in mind, Times media columnist Ben Smith tweeted: “Don’t think journalists should be cheerleading this one.”
Whatever one thinks of O’Keefe and his gonzo journalism from the right, the heavy-handed treatment of any journalist is a deterrent to reporting, prior restraint inimical to the First Amendment.
Justices of the U.S. Supreme Court in the oral argument for Ramirez v. Collier Tuesday addressed the issue of a condemned man’s religious rights at his execution – coming from angles both critical and approving of an expansive view of those rights.
John H. Ramirez was convicted of stabbing a convenience store clerk to death when he was twenty years old. Now 37, Ramirez claims to have had a conversion experience and requests that his pastor be allowed to lay hands on him and pray while he is executed by lethal injection. Ramirez based his request on the Religious Land Use and Institutionalized Persons Act (RLUIPA), which the Court had previously found to grant inmates an “expansive protection of religious liberty.” Texas rejected his request. (In September, Protect The 1st filed a brief urging the Court to recognize that denying Ramirez’s wish would be a substantial burden on his free exercise of religion.)
In Tuesday’s hearing, Justice Brett Kavanaugh’s circled around the question of whether the State of Texas has a compelling interest in ensuring that executions are carried out with “zero risk” of interference with the process. He noted that having “another person in the room” heightens risk to the execution process. Later, Justice Amy Coney Barrett asked if the State of Texas expected “zero risk” to the procedure to be the acceptable compelling interest for the state.
Ramirez’s attorney, Seth Kretzer, said no such incidents of interference from clergy in Texas executions had occurred in the last 100 years. He also noted that any religious accommodation – such as gathering inmates for religious ceremonies as envisioned by RLUIPA – would necessarily entail some small degree of tolerable risk.
Justice Samuel Alito expressed concern that granting Ramirez’s request could lead to “an unending stream” of variations on this case. Noting that correctional officers would prefer any contact between the prisoner and pastor be as far from the site of a lethal injection to the arm, Alito suggested the touching could be done on the foot. Would the court later have to hear cases about touching a knee, the hand or the head, Alito asked, adjudicating “the whole human anatomy?”
Justice Sonia Sotomayor showed the greatest sympathy for Ramirez. She batted down the complaint of the Texas Solicitor General that Ramirez’s filings had delayed his execution, while ignoring the delays the state’s own, often tardy, denials have caused.
Attorney Kretzer got the last word, telling the court that the only botched executions in recent history occurred at the hands of incompetent administrators of fatal drugs. Kretzer summed up the case for Ramirez in an eloquent statement to The Corpus Christi Caller-Times.
The First Amendment applies in the most glorified halls of power and also in the hell of an execution chamber.
This is the season when leaves turn orange and red. The air becomes delightfully crisp. And college administrators turn out to tell student political organizations that they cannot exercise their First Amendment right to advocate for political candidates in the upcoming election.
In this off-year election cycle, the director of student activities at Washington & Lee University told that school’s Young Republicans that they could not display campaign materials in support of Glenn Youngkin, the Republican candidate for governor. In 2016, administrators for the Georgetown University Law Center prevented a group of students supporting Sen. Bernie Sanders’ bid for the Democratic nomination for president from handing out campaign materials on campus.
“The protection of political speech is at the very core of the purpose and meaning of the First Amendment,” said Bob Goodlatte, senior policy adviser to Protect The 1st and a graduate of Washington & Lee University law school. “Every college and university must have a keen recognition of this central truth of our system.”
In these incidents, administrators incorrectly claim that the school’s tax-exempt status requires this limitation. And it does – for non-profit colleges and universities, and for administrators and faculty themselves when acting in their official capacities on behalf of or through their organizations. IRS Code § 501 (c) (3) requires tax-exempt organizations “not to participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.”
But the language of the Internal Revenue Service is unequivocal regarding the rights of students to exercise political speech.
For example, IRS code explicitly allows student newspapers to express political views. Even though the facilities for the newspaper are furnished by the university, the IRS recognizes that the educational mission of a university benefits from allowing student journalists to express their views on the issues and candidates of the day.
Similarly, another rule allows political science courses to dispatch students to work on political campaigns as a part of their education.
And there is no IRS prohibition against student political organizations from putting up booths and handing out literature for “Bernie,” “Glenn,” “Donald” or “Joe.” Washington & Lee’s own policy states:
Student political organizations (College Republicans, Young Democrats, etc.) are not prohibited from pursuing their normal activities consistent with the academic nature of their endeavors.
Washington & Lee requires such groups to pay the student organization rates for using institutional facilities and declare any appearance by a candidate for political office to be for “educational” purposes. And, of course, it would be a violation of the IRS code for a student group to undertake political activity at the behest of a college, its administrators or faculty. And even if at some future date the IRS code insisted that private universities suppress the independent political speech and association of its students, that would be such a severe restriction on freedom of speech that it is hard to imagine such a law or regulation surviving any level of constitutional scrutiny.
“It is likely that Washington & Lee University will live up to its policies and ideals,” Goodlatte said. “The quest for political freedom on campus, however, is an ongoing struggle with students as well as administrators.”
Last week, the student senate of Wichita State University denied the application of a student chapter, Turning Point USA, which advocates “principles of freedom, free markets and limited government.” The student senators voted 21-14 not to grant the club and its 165 members status as a student organization. As it turns out, however, there is a student supreme court on campus, which overturned the vote and allowed Turning Point to be recognized. That ruling cited the First Amendment and many clauses in the university’s Student Bill of Rights. (And while a state university is directly bound by the Fourteenth and First Amendments, the principle is the same regarding any supposed IRS compulsion for private universities: What government cannot do directly it cannot do as a condition of tax exempt status.)
It is easy to see why some might be offended by Turning Point, whose slogan is “Socialism Sucks,” or partisans by Bernie Sanders, or by Glenn Youngkin. A 2017 poll of 1,500 undergraduates reported by the Brookings Institution shows that 51 percent of students believe they have a right to shout down controversial speakers. Nineteen percent believe that violence is justified.
“Perhaps the continuing inability of students and administrators alike to respect or even understand the First Amendment may point to the deficiencies of not just higher education, but in what used to be called a civics education in high school,” Goodlatte said.
Priscilla Villarreal is a citizen journalist who uses her cell phone to live-stream videos of traffic accidents and crime scenes. Known on Facebook as Lagordiloca (“the big, crazy lady”), Villarreal has managed to crawl under the skin of local law enforcement.
She live-streamed Laredo Police Department officers choking an arrestee during a traffic stop. She criticized the Webb County District Attorney for not charging a relative of one of its prosecutors, despite evidence that the relative had abused animals. When she recorded a crime scene from behind a barricade, an officer threatened to confiscate her phone – while ignoring members of the traditional media standing next to her.
In April, 2017, Villarreal posted a story about a U.S. Border Patrol agent who had committed suicide. A month later, she posted the last name of a family involved in a fatal car crash. In both instances, she had confirmed her information with a Laredo Police Department officer, just as any journalist would.
Six months later, Villarreal was arrested and charged with two third-degree felony counts for violating a Texas statute outlawing “Misuse of Public Information.” The affidavit in support of the arrest warrant said she had published “nonpublic” information. After turning herself in, Villarreal was followed in the booking process by police officers who mocked her and took pictures of her in handcuffs.
The statute in question largely deals with public officials who use inside information for their own benefit. The “benefit” that private citizen Villarreal was charged with illicitly seeking was attracting more followers to the then-120,000 audience for Lagordiloca. By this logic, a similar “benefit” could be construed from any story that brings followers, watchers or readers to a commercial media news outlet. A district court dismissed Villarreal’s First, Fourth and Fourteenth Amendment claims for her defense and rejected her right to seek redress.
On Nov. 1, Judge James Ho of the 5th Circuit of Appeals reversed this ruling. His findings should be printed and posted in every police station in the United States.
If the First Amendment means anything, it surely means a citizen journalist has the right to ask a public official a question, without fear of being imprisoned. Yet that is exactly what happened here: Priscilla Villarreal was put in jail for asking a police officer a question.
If that is not an obvious violation of the Constitution, it’s hard to imagine what would be.
Judge Ho went on to address the district court’s next mistake, which prevented Villarreal from pursuing a wrongful arrest claim.
And as the Supreme Court has repeatedly held, public officials are not entitled to qualified immunity for obvious violations of the Constitution.
The district court accordingly erred in dismissing Villarreal’s First and Fourth Amendment claims on qualified immunity grounds. The district court also erred in dismissing her Fourteenth Amendment claims for failure to state a claim.
This case should resonate on Capitol Hill, where Rep. Jamie Raskin and Sen. Ron Wyden have introduced the Protect Reporters from Exploitive State Spying (PRESS) Act. This bill would create a federal statutory privilege to protect journalists from being compelled to reveal confidential sources and prevent federal law enforcement from abusing subpoena power. Though the PRESS Act addresses different issues than the ones at the heart of the Villarreal case, debate about the role of the press should be informed by the need to offer wide protections to citizen journalists.
While law enforcement in Laredo comes to terms with the law – and the likelihood they will be sued – they should also contemplate the law of unintended consequences. Since her arrest, Lagordiloca has added another 70,000 followers.
Like book lice chewing on parchment, illiberal impulses from the right and the left threaten to narrow the plain meaning of the First Amendment.
Earlier this month, Protect The 1st reported on U.S. District Judge Mark Walker who issued an injunction on a new Florida law that would have prosecuted peaceful protesters who “participate” in events that turn violent. Judge Walker noted that because “it is unclear what it means to participate, the statute can plausibly be read to criminalize continuing to protest after violence occurs, even if the protestors are not involved in, and do not support the violence.”
Judge Walker imposes on us the burden of separating people by their actions – the right to protest for a redress of grievances from violence. He made it clear that this burden is necessary if we are to remain a society that offers maximum protection for free speech.
A similar issue arose out of Attorney General Merrick Garland’s testimony before the House Judiciary Committee last week.
In this case, Garland was asked about a National School Boards Association letter that portrayed parents who object to teachings and policies in schools as participating in “domestic terrorism,” which could subject these parents to surveillance under the federal Patriot Act. (The NSBA later told its membership that this letter was sent out by two organization officials without approval.) It was on this basis that a Department of Justice memo signed by Merrick Garland initiated a national effort to open lines of “threat reporting” to the FBI.
Rep. Jim Jordan (R-OH) asked if this was a “snitch line” for dissent. Rep. Steve Chabot noted that those who threaten violence “can be dealt with by security, or by local law enforcement.” For his part, the attorney general stoutly maintained that his purpose was to protect teachers, administrators and school board members from threats of violence. The attorney general reaffirmed he vigorously defends First Amendment rights of parents to “vociferously” question controversial issues from mask mandates to critical race theory.
It is unlikely, of course, that any parent would ever be indicted for such speech. If this were to happen, the First Amendment would require a judge to bounce that case immediately. There is a more immediate danger, however, highlighted by Andrew McCarthy of The National Review, one that is the flip side of the Florida law that conflates protest with violence. The investigative process, McCarthy wrote, is “more than enough to suppress dissent.”
The citizen is warned that he is being scrutinized by the federal government in all its comparative might. For exercising his supposed right to protest, the citizen will be harmed in a hundred different ways by the fact of an FBI probe – the anxiety of potential prosecution, the often prohibitive expense of retaining counsel, the loss of business opportunities because of the specter of prosecution, the loss of social ties as friends and associates abandon the citizen lest Leviathan sees them as fellow conspirators.
The judge’s blocking of the Florida law and the outcry over FBI school board speech investigations will likely stop either of these initiatives from doing much damage. What remains disturbing is the failure of some on the right and the left to understand how delicate the actual practice of free speech is, and the wide berth we must give it so dissent and debate can flourish in America.
On Friday, the 9th Circuit Court of Appeals in San Francisco will hear arguments from the Apache Stronghold in its last-ditch effort to prevent tribal sacred lands from being turned over to two foreign mining companies. If the Apache lose this last round, there may be no stopping the mining companies from gouging into the land, leaving a sinkhole two-miles wide and 1,000-foot deep.
What does Oak Flat mean to Apache people?
Naelyn Pike of the San Carlos Apache says that this land is the “cornerstone” of her people’s religion. It is a site for religious observance, set aside by the Creator for the Apache as a “corridor to the next world.”
It is a place for tribal ceremonies and a place, she says, for Apache people “to come every day.”
“Everything that we use from our shoelaces, to how we wash our hair, to the stones we use for our prayers and our ceremonies are all a part of this land,” she says. If the 9th Circuit allows the destruction of Oak Flat, Naelyn says “it will be gone forever and eventually our religion will go with it.”
It merits repeating – the destruction of Oak Flat is comparable to the destruction of the Vatican or Temple Mount for Catholics and Jews. The First Amendment explicitly protects freedom of worship. The Religious Freedom Restoration Act explicitly protects Americans from having substantial burdens placed on the free exercise of their religion.
If the destruction of Oak Flat is not a substantial burden, words have no meaning.
UpdateS: San Carlos Apache Turn to the Ninth Circuit for Relief on Confiscation and Destruction of Oak Flat Religious Site
Members of the San Carlos Apache Tribe in Arizona are turning to the 9th Circuit Court of Appeals in San Francisco in a last-minute bid to stop a foreign mining company from acquiring their sacred lands from the federal government. If they lose, lands as sacred to their religion as the Temple Mount and the Vatican are to Judaism and Catholicism will be mined and transformed into a giant sinkhole.
The Apaches are asking the Ninth Circuit Court to reverse the refusal of a lower court to stop the publication of a final environmental impact statement on the mine. Such a step would give Congress and the courts time to reconsider an irreversible act that would destroy the centerpiece of these Americans’ religion.
“The Apaches have a strong case that has so far received poor consideration by the courts,” said Gene Schaerr, general counsel of Protect The First. “The First Amendment protects the Apaches’ free exercise of religion. The Religious Freedom Restoration Act prohibits the government from substantially burdening that right. This appeal should be a slam-dunk for the Ninth.”
Last summer, Americans angered by the murder of George Floyd passionately but peacefully protested in Minneapolis, Portland and other cities. Their protests were sometimes followed by rioting, looting and the burning down of businesses.
How do we treat peaceful protesters when violence is in the vicinity? A measure recently signed into law in Florida would have criminalized attendance at a rally where some violence occurs, even if the individuals charged with crimes committed no violent acts. “This targeting of protesters is shameful and directly contradicts our Constitution,” the NAACP Legal Defense and Educational Fund wrote in a filing with the American Civil Liberties Union and other groups.
A federal judge recently agreed, bringing clarity to this issue when he blocked the implementation of that law. U.S. District Judge Mark Walker enjoined the Florida statute. What he said should be guidance to those on all sides who want to criminalize speech in the form of peaceful protest:
If this court does not enjoin the statute's enforcement, the lawless actions of a few rogue individuals could effectively criminalize the protected speech of hundreds, if not thousands, of law-abiding Floridians.
Because it is unclear whether a person must share an intent to do violence and because it is unclear what it means to participate, the statute can plausibly be read to criminalize continuing to protest after violence occurs, even if the protestors are not involved in, and do not support, the violence. The statute can also be read to criminalize other expressive activity, like remaining at the scene of a protest turned violent to film the police reaction.
Those who engage in violence must be prosecuted. But laws should focus on those who commit criminal acts, not those who exercise their right to peaceably assemble and to petition the government for a redress of grievances.
Next week the U.S. Supreme Court will decide whether to hear a First Amendment case brought by the American Civil Liberties Union about the withholding of opinions issued by the secret Foreign Intelligence Surveillance Court (FISC).
ACLU and its supporters want the Court to decide whether the FISC has jurisdiction to deny that the First Amendment provides a qualified right of access to the court’s significant opinions (subject to redactions); whether the Foreign Intelligence Surveillance Court of Review (FISCR) has jurisdiction to consider an appeal of the denial of such a motion; and whether the First Amendment provides a qualified right of public access to the FISC’s significant opinions.
It’s the first time the nation’s high court has been asked to resolve whether the FISC must make its secret opinions public. While many view this complex case from the stance of government surveillance policy and privacy concerns, the vitality of the First Amendment is at stake as well.
The ACLU’s petition is the culmination of a years-long, multi-tiered, labyrinthian dispute with the FISC dating back to 2013.
ACLU states it “has filed three motions in the FISC asking it to release secret opinions authorizing the surveillance of Americans. The public has a right to see the legal decisions addressing novel surveillance programs that affect our privacy and free speech rights — but many of the FISC’s opinions remain closely guarded secrets.”
George Will put it this way: “What is disturbingly anomalous is a court whose jurisdiction implicates fundamental rights, but whose reasoning is made public only at its discretion.”
There’s further reason for concern: Other FISC opinions that have been made public have revealed major legal violations in the surveillance of Americans by the government.
The ACLU maintains that under separation-of-powers principles, courts – not the executive branch – should decide whether judicial opinions ought to be made public. Voluntary review by the executive branch is not a substitute for judicial review, especially since the executive branch’s control of the FISC opinion declassification process makes it all too easy to release opinions slowly and opportunistically.
The Justice Department, headed by Attorney General Merrick Garland, argues that the First Amendment doesn’t extend to the public’s right of access to secret decisions issued by a federal court.
As a federal appeals court judge six months before he was nominated to be attorney general, Garland stated that court decisions are public documents, and that judicial decisions have been held open for public inspection since at least the time of Edward III. Judge Garland wrote of the right of access to judicial records:
“At bottom, it reflects the antipathy of a democratic country to the notion of ‘secret law,’ inaccessible to those who are governed by that law.”
Judge Garland’s statement is in harmony with an amicus brief filed by the civil liberties organization, The Project for Privacy and Surveillance Accountability: “This case raises a significant question: How can the American people learn of, debate, and cast informed votes relating to the Executive Branch’s surveillance activities performed in their names … if the government refuses to disclose that information?”
Protect The 1st hopes the Court will bear in mind the words of one of its own — Associate Justice Elena Kagan, who said, "The Supreme Court … has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the Court must also recognize the limits on itself and respect the choices made by the American people.”
Protect the FIRST Foundation Tells Supreme Court that Austin Sign Regulation Offensive to 1st Amendment
Protect The First Foundation filed an amicus brief Wednesday in City of Austin, Texas, v. Reagan National Advertising, before the Supreme Court, showing that a city regulation forbidding “off-premise signs” violates the First Amendment.
Austin city code prohibits signs from displaying messages that advertise “a business, person, activity, goods, products, or services not located where the sign was installed.” A sign cannot even direct people to another location. Any such sign is designated “off-premise” and is forbidden. Although there is an exception for older, grandfathered signs, that protection is lost if the signs are changed or improved.
“Austin’s sign code is inherently about the regulation of content,” said Gene Schaerr, Protect The 1st general counsel. “For that reason alone, it should be subject to – and fail – the strict scrutiny courts apply to First Amendment cases.”
PT1 argues that the regulation restricts speech, including subjects that do not lend themselves to a premise-specific communication, whether it’s “Vote,” “Get Vaxxed,” or “Jesus Saves.”
“Regulations that turn on the content of speech,” the PT1 brief declares, “are particularly troubling and prone to abuse, even where they are not overtly based on the viewpoint of the restricted speech. Often, a content restriction is merely a proxy for viewpoint discrimination. Other times it involves discrimination against topics, types of speech, or speakers. All of those forms of governmental discrimination offend the First Amendment.”
And, PT1 argues, because Austin has not offered any reason why signs bearing off-premise content pose a greater threat to aesthetics and traffic safety than do signs bearing on-premise content, the city cannot justify its speech code. The ordinance is “underinclusive,” and thus unconstitutional.
In 2018, the Becket Fund for Religious Liberty launched a podcast called “Stream of Conscience” to shed light on religious liberty in America. The podcast presents important cases in an engaging, conversational format.
Season Two kicked off this month. Host Katie Geary dives deeper the far-reaching implications of the rights of religion, as seen through the lens of two major elements of the Constitution: The Establishment and Free Exercise clauses. Other fundamental freedoms come into play as well, showing how freedom of speech and the right to property are deeply entwined with religious liberty.
In the first episode, Geary and Becket Executive Director Montse Alvarado discuss the Religious Freedom Restoration Act, which was passed in 1993 with overwhelming bipartisan support that’s rarely, if ever, seen today. Episode two takes on the idea of separation of church and state – which, contrary to public opinion, is not part of the Establishment Clause of the Constitution.
Protect The 1st Urges Supreme Court to Adopt “Expansive” View of Religious Rights of Incarcerated in Ramirez v. Collier
Protect The 1st filed a brief today in Ramirez v. Collier, a case the Supreme Court will hear this November. Its brief urges the Justices to recognize a robust interpretation of a law Congress designed—in the Court’s own words—to provide “expansive protection of religious liberty.”
In this case, John H. Ramirez, a convicted murderer in Texas, has requested that his pastor be allowed to lay hands on him and pray while he is executed by lethal injection. The laying on of hands is an ancient tradition, one that is held to transfer the power of absolution and benediction from God. Texas rejected his request because, in its words, a law protecting religious observances for the incarcerated does not mean that the state “must accede to his every religious demand.”
Ramirez counters that Texas would have his pastor “stand in his little corner of the room like a potted plant” and that “if he even breathes through his mouth, the warden may declare that” the pastor is “trying to utter prohibited words of prayer.”
The greater significance of this case revolves around the Religious Land Use and Institutionalized Persons Act (RLUIPA), a statute that defines religious exercise “capaciously,” backed by many court interpretations favoring broad religious protections.
“Some lower courts, however, have failed to understand the clear message from Congress that we should give broad leeway when it comes to the free exercise of religion by the incarcerated,” said Gene Schaerr, Protect The 1st general counsel. “They’ve seized on one undefined term in the statute, ‘substantial burden,’ to find ways to undermine the intent of the law.
“There is more at stake in Ramirez than just the issue at hand,” Schaerr said. “The Court has a rare opportunity to make it clear to lower courts that they should respect the expansive and generous interpretation of RLUIPA that Congress intended for all incarcerated people.
“The Court should recognize that government can substantially burden religion in varied and ingenious ways. It should go without saying that making it impossible to observe one’s faith at the moment one is killed by the state is as substantial a burden as they come.”
Schaerr pointed to reasons for optimism about the outcome of this case.
In February, the Court declined to remove an injunction halting the execution of an Alabama man who was denied the opportunity to have his pastor at his side in the execution chamber. In that case, Justice Elena Kagan filed a concurring opinion, joined by Justice Stephen Breyer, Justice Sonia Sotomayor, and Justice Amy Coney Barrett explaining that state action barring religious exercise must pass heightened judicial scrutiny. PT1st’s amicus brief also notes that in 2014 then-Judge Neil Gorsuch wrote that when the government prevents the plaintiff from participating in [religious] activity, giving the plaintiff no “degree of choice in the matter,” then that “easily” imposes a substantial burden on religious exercise.
Death by taxes? Not today: A Cincinnati tax that targeted two billboard companies was ruled unconstitutional by the Ohio Supreme Court.
The court permanently enjoined the city of Cincinnati last week from enforcing an excise tax on billboard advertising that it imposed on two companies in 2018. The billboard operators, Lamar Advantage GP Company and Norton Outdoor Advertising, successfully argued that the tax violates their rights to freedom of speech and a free press under the First Amendment.
The struggle between commercial printed media and taxation in this country hails back to the reign of King George III. The Stamp Act of 1765 sought to replenish the British treasury after the empire’s victory over France in the Seven Years’ War. The act taxed newspapers, legal documents and printed materials – from wills to deeds, pamphlets, newspapers and posters.
The Stamp Act proved to be an early failure. Taxes levied under the act pushed American colonists to the point of rebellion.
A 21st century free speech crisis would have occurred in Cincinnati had the state supreme court not ruled the discriminatory tax unconstitutional. The city enacted the billboard-tax ordinance to raise revenue that would help address a $2.5 million budget deficit and claimed that the tax wasn’t meant to regulate or mitigate the effects of billboards.
Lamar and Norton disagreed and filed suit in 2018, citing First Amendment violations.
The Ohio Supreme Court ruled in favor of the plaintiffs, concluding that, “The basic premise of the First Amendment is that all present instruments of communication, as well as others that inventive genius may bring into being, shall be free from governmental censorship or prohibition.”
Writing for the Supreme Court majority, Justice Sharon L. Kennedy stated that regardless of whether the city intended to censor the billboard messages or not, “a selective tax creates the intolerable potential of self-censorship by the press and abuse by governmental actors aimed to suppress, compel, or punish speech.”
She added: “That the tax involves billboards rather than the institutional press is of no consequence.” The billboard companies’ rights as speakers and publishers are protected by the same free speech and press rights as other publishers, the court held.
In an interesting side note, the court ruling included an observation that the city’s billboard tax resembles the type of taxes levied under the Stamp Act of 1765. The opinion included this nugget: “One scholar has explained, it was “‘quite likely that [the tax on] paper was more emphatically an immediate cause for the outbreak of the spirit of revolt than the insipid [tea] of which so much has been written.’”
The Ohio Supreme Court’s ruling itself is a strong brew.
Recent lines of thinking hold that non-profit groups, social media or radio shows might benefit from government regulation of content. The Ohio Supreme Court reminds us that regulation of all forms of communication “that inventive genius may bring into being” is squarely at odds with the First Amendment.
Erik Jaffe, Protect The 1st Policy Director, joins a panel discussion at the CATO Institute looking ahead on what to expect in the Supreme Court’s October term. Among the topics: the case of Texas death row inmate John Ramirez, whose scheduled execution was halted by the U.S. Supreme Court over possible violations of his First Amendment right to the free exercise of religion.
The case of high school football coach Joe Kennedy is like one of those wild games with one turnover after another. For the second time, the U.S. Supreme Court will decide whether to hear his case.
A high school coach at Bremerton School District in Washington State, Kennedy had the habit of taking a knee on the 50-yard line of the field after every game. He did so not to make a political statement, but to engage in a few seconds of silent prayer.
Kennedy was fired in 2015 for repeatedly violating an order by the school not to pray. This case came to be seen as the razor’s edge of legal theory to protect the First Amendment right to free exercise of religion. Prior Court opinions forbid organized prayer. But Kennedy prayed by himself outdoors, after his games.
This case bounced around the courts for years. The firing of Kennedy was upheld by the Ninth Circuit Court of Appeals. Kennedy’s first petition before the Supreme Court was denied in 2019. Justice Samuel Alito noted that “denial of certiorari does not signify that the Court necessarily agrees with the decision.” He also wrote that “the Ninth Circuit’s understanding of the free speech rights of public school teachers is troubling and may justify review in the future.”
Kennedy’s new petition will be reviewed by the high Court, this time with a new Justice – Amy Coney Barrett – who has been notably interested in the free exercise of religion throughout her career.
Sen. Mike Lee (R-UT) and 11 Senate colleagues submitted an amicus brief to the Supreme Court on Friday, encouraging the Court to protect religious educational institutions from discrimination in the form of disqualification from a state tuition assistance program.
In Carson v. Makin, the Court is considering whether Maine violated religious liberty rights by restricting the availability of student-aid programs for religious schools otherwise generally available to private, non-religious schools. Protect The 1st made a similar argument in our brief on this case.
“Students should not be punished for attending a school where faith is taught, and states should not be able to discriminate against citizens who choose to live and learn their faith in school,” Sen. Lee said.
Free Speech Center in Tennessee Celebrates Constitution Week with Free Book for Teachers, Zoom Discussion on the Bill of Rights
On September 17, 1787 – 234 years ago this Friday – the Founding Fathers signed the final draft of the United States Constitution. In 2002, President George W. Bush declared this day the start of the Constitution Week celebration.
At a time when basic constitutional tenets are under attack by political extremes on both sides, we are inspired to hear about renewed efforts in the American heartland to teach young Americans about our Constitution and the First Amendment.
The Free Speech Center at Middle Tennessee State University is commemorating this observance by offering teachers across the nation a concise overview of constitutional principles in a new, free book for grades 7 through 10.
This Free Speech Center in Murfreesboro is also holding a Zoom discussion between its Director, Ken Paulson and Belmont University Law School Professor David L. Hudson Jr. to discuss Hudson’s new book, The Bill of Rights: The First Ten Amendments to the U.S. Constitution. Anyone joining the Zoom conversation on Sept. 14 will receive a free e-book edition of Hudson’s book.
It is important to remember that while constitutional principles are under attack in academia, in state capitols, and on populist social media, such centers are educating another generation of Americans why the Constitution is vital.
Protect The First Foundation Tells Supreme Court that Denying Funding for Students at Religious Schools Violates the Free Exercise Clause
Brief Calls on Supreme Court to End Maine's Discrimination Against Religious BelieF
On Friday, Protect The First Foundation filed a brief in Carson v. Makin, a case asking whether private schools can be denied access to public benefits because they will put them to religious use.
The case concerns several parents who successfully petitioned the Supreme Court to hear their challenge to Maine’s refusal to make its tuition assistance program available for religious schools. PT1st’s amicus brief provides the court with many reasons to reverse an opinion from the First Circuit Court of Appeals holding that Maine’s scheme passed constitutional muster.
As Protect The 1st reported in July, Maine is adopting a very eccentric – and discriminatory – policy toward religious schools. It recognizes that religious schools – be they Catholic, generically “Christian,” Jewish Orthodox, or Muslim – are eligible for student-aid programs regardless of that school’s religious status. The Supreme Court made clear last year in Espinoza v. Montana Department of Revenue that at least that much was constitutionally required. Maine nevertheless denied its tuition assistance program because these schools dare to include religious instruction in their school day.
In short, Maine says it is okay for a nominally “Catholic” school to receive funding as long as it doesn’t set aside time during the school day for Catholic activities, such as the Mass or Bible discussion.
In this way, Maine forbids parents from accessing publicly available aid to send their children to religious schools. Maine restricts these funds despite religious schools satisfying Maine’s educational requirements in important subjects. Maine’s policy also ignores many parents’ religious obligation to provide their children with a religious education.
That parents in many religions have such an obligation is well documented. The Vatican Council II charges parents with “the duty of entrusting their children to Catholic schools wherever and whenever it is possible.” Muslims leaders say Muslim schools are an essential way to preserve Muslim identity and beliefs and provide places where Islamic attire can be worn without pressure toward un-Islamic behavior. For Jewish schoolchildren, it would be impossible in public schools to participate in daily prayers, or eat in outdoor booths during the holiday of Sukkot.
These religious schools provide spaces for passing on beliefs and culture while also meeting high standards in teaching math, science, history, and English. As the PT1st brief showed:
Families have a free exercise right to educate their children in religious schools quite apart from their right not to be discriminated against on the basis of religious status. And excluding them from a publicly available benefits program—to which they have contributed tax dollars and which would be available to them but for their desire to educate their children at a school that teaches about their faith—places a substantial burden on that right.
What is the nature of that burden? It’s a matter of paying a tax that funds a benefit that everyone is eligible to receive except students at religious schools.
[U]nder Maine’s statutory scheme, that burden is effectively increased by nearly 100% for parents who prefer a religious education for their children.
PT1st’s brief demonstrates that Maine’s laws are burdensome and anything but neutral with respect to religion. We will continue to monitor this case as the Justices hear oral argument later this term. We hope the Court will take to heart the points raised in our brief and hold that the right recognized in Espinoza extends to religious schools that act religiously as well as just those that have a religious name.