California, known for its progressive values and innovation, is increasingly becoming a battleground over the regulation of speech. The state's regulatory, political, and educational bodies are systematically encroaching on the fundamental right to free expression, attempting to manage and control speech in ways that undermine the First Amendment in the schools and among businesses.
When California sets a precedent, the implications for free speech rights across the country are profound, warranting close scrutiny and robust debate. Yet in California, recent actions reflect a shift towards control and censorship, challenging this essential liberty. Consider the legal battle involving X Corp., formerly known as Twitter. The company has been fighting against surveillance and gag orders that infringe on X’s First Amendment rights while also threatening the Fourth and Sixth Amendment rights of its users. When the government demands access to personal data stored by companies like X Corp. and then issues Non-Disclosure Orders (NDOs) to keep this secret, it coerces companies into acting as government spies, unable to speak to their users about the breaches of their privacy. This case highlights a broader pattern in California's legislative and judicial landscape. One recent law, California Bill AB 587, mandates that social media companies disclose their content moderation practices. Legal scholar Eugene Volokh has argued that this law pressures companies to engage in viewpoint discrimination, reveal their internal editorial processes, and do the government's bidding in managing speech. How would that be different from requiring newspapers to explain their editorial decisions to the government? These laws and regulations are often claimed to be justified as necessary for combating hate speech, misinformation, and harassment; however, they impose significant burdens on companies and threaten to stifle free expression. A court recently ruled against X Corp. in its attempt to block the law requiring it to disclose to the government the internal deliberations of its content moderation policies. While transparency in moderation practices might seem beneficial, the forced disclosure could lead to state-enforced censorship and coercion of private editorial processes, undermining the very principles of free speech the First Amendment is meant to protect. The state's approach to managing speech extends beyond digital platforms. In a recent disturbing case, an elementary school disciplined a first grader for drawing a benign picture with the phrase “Black Lives Matter.” Being young and probably unaware of the larger sensitivities, this elementary school child added: “any life.” The school promptly disciplined the child without telling her parents. This overreaction reflects a broader problem with educational institutions, driven by a hypersensitivity to the perceived (or mis-perceived) demands of political correctness, that end up punishing even innocent expressions of empathy and solidarity. A federal court's support for the school's actions further highlights the precarious state of free speech rights in educational settings, from elementary school up to graduate school, law school, and medical school. California's aggressive stance on speech regulation also manifests in its legal battles over the Second Amendment. A controversial state law tried to impose attorney's fees on plaintiffs challenging gun restrictions even if they win their case, but lose any small portion of their claims. This tactic aims to deter legal challenges and silence dissent, directly contravening First Amendment rights. The law’s similarity to a Texas statute targeting abortion challengers underscores a worrying trend of using financial penalties to stifle constitutional challenges. These cases collectively illustrate a dangerous trajectory in California's approach to managing speech. The state's efforts to regulate and control various forms of expression, whether online, in schools, or through legal deterrents, represent a direct assault on the First Amendment. The complexities and nuances of speech, inherently messy as they are, cannot and should not be sanitized by governmental oversight. Fortunately, the U.S. Supreme Court remains a bulwark against regulations violating the First Amendment. The Court’s decision in AFP v. Bonta, which struck down California's requirement for non-profit organizations to disclose their donors, was a significant victory for free speech. The Court recognized that such disclosure requirements pose a substantial burden on First Amendment rights, particularly by exposing donors to potential harassment and retaliation. This case reinforces the principle that anonymity in association is crucial for protecting free expression and dissent. In the recent NetChoice opinion, a majority of the Court gave a ringing endorsement of editorial freedom, even while sending the case back for a more detailed review of the laws. We remain optimistic the Supreme Court will likewise rein in California’s antagonism toward the First Amendment if, and when, it has the opportunity. The recent session of the U.S. Supreme Court will likely be remembered for two major rulings implicating fundamental separation of powers doctrine: Trump v. United States, establishing presumptive immunity from prosecution for official presidential acts; and Loper Bright Enterprises v. Raimondo, dispensing with the long-established “Chevron Two Step” granting deference to a federal agency’s interpretation of statutes. In both instances, the Court reaffirmed our constitutional system of checks and balances, including protection against encroachment on the powers and privileges of one branch of government by another.
Against the backdrop of those headline-dominating developments, the Supreme Court also took on several important First Amendment cases, with results that were constitutionally sound. Below are the highlights – and summaries – of the Court’s First Amendment jurisprudence released in recent weeks. Food and Drug Administration v. Alliance for Hippocratic Medicine In a unanimous ruling, the Supreme Court rejected a challenge to the Food and Drug Administration’s regulation of the abortion drug mifepristone. Little noticed by the media, the Court’s opinion also firmly nailed down the conscience right of physicians to abstain from participating in abortions and prescribing the drug. Writing for the Court, Justice Kavanaugh said that the Church Amendments, which prohibit the government from imposing requirements that violate the conscience rights of physicians and institutions, “allow doctors and other healthcare personnel to ‘refuse to perform or assist’ an abortion without punishment or discrimination from their employers.” From now on, any effort to restrict or violate the conscience rights of healers will go against the unanimous opinion of all nine justices of the U.S. Supreme Court. Vidal v. Elster The Supreme Court, in another unanimous decision, overturned a lower court ruling that found that the U.S. Patent and Trademark Office’s denial of an application to trademark a phrase including the name “Trump” violated the filer’s First Amendment rights. Writing for the Court, Justice Thomas wrote that “[o]ur courts have long recognized that trademarks containing names may be restricted.” But such trademark restrictions, while “content-based” must be “viewpoint neutral.” This opinion prevents commercial considerations to scissor out pieces of the national debate. While the decision rejected a novel First Amendment claim to a speech-restricting trademark, it affirms sound First Amendment principles and protects the speech of all others who would discuss and debate the virtues and vices of prominent public figures. The Court was right to refuse the endorsement of a government-granted monopoly on a phrase about a presidential candidate. NRA v. Vullo NRA v. Vullo – yet another unanimous opinion – cleared the way for the National Rifle Association to pursue a First Amendment claim against a New York insurance regulator who had twisted the arms of insurance companies and banks to blacklist the group. Maria Vullo, former superintendent of the New York State Department of Financial Services, met with Lloyd’s of London executives in 2018 to bring to their attention technical infractions that plagued the affinity insurance market in New York, unrelated to NRA business. Vullo told the executives that she would be “less interested” in pursuing these infractions “so long as Lloyd’s ceased providing insurance to gun groups.” She added that she would “focus” her enforcement actions “solely” on the syndicates with ties to the NRA, “and ignore other syndicates writing similar policies.” The Court found for the NRA, writing that, “[a]s alleged, Vullo’s communications with Lloyd’s can be reasonably understood as a threat or as an inducement. Either of those can be coercive.” The Supreme Court’s opinion vacates the Second Circuit’s ruling to the contrary and remands the case to allow the lawsuit to continue. As the Court wrote, “the critical takeaway is that the First Amendment prohibits government officials from wielding their power selectively to punish or suppress speech, directly or (as alleged here) through private intermediaries.” And we wholeheartedly agree – censorship by proxy is still government censorship. Moody v. NetChoice In one of two cases involving the nexus of government and social media, the Court seemed to punt on making a final decision on the constitutionality of laws from Florida and Texas restricting the ability of social media companies to regulate access to, and content on, their platforms. Many commentators believed the Court would resolve a split between the Fifth Circuit (upholding a Texas law restricting various forms of content moderation and imposing other obligations on social media platforms) and the Eleventh Circuit (which upheld the injunction against a Florida law regulating content and other activities by social media platforms and by other large internet services and websites). The Court’s ruling was expected to resolve the hot-button issue of whether Facebook and other major social media platforms can depost and deplatform. Instead, the Court found fault with the scope and precision of both the Fifth and the Eleventh Circuit opinions, vacating both of them and telling the lower courts to drill down on the varied details of both laws and be more precise as to the First Amendment issues posed by such different provisions. The opinion did, however, offer constructive guidance with ringing calls for stronger enforcement of First Amendment principles as they relate to the core activities of content moderation. The opinion, written by Justice Elena Kagan, declared that: “On the spectrum of dangers to free expression, there are few greater than allowing the government to change the speech of private actors in order to achieve its own conception of speech nirvana.” Murthy v. Missouri In what looked to be a major case regarding the limits of government “jawboning” to get private actors to restrict speech, the Court instead decided that Missouri, Louisiana, and five individuals whose views were targeted by the government for expressing misinformation could not demonstrate a sufficient connection between the government’s action and their ultimate deplatforming by private actors. Accordingly, the Court’s reasoning in this 6-3 decision is that the two states and five individuals lacked Article III standing to bring this suit. A case that could have defined the limits of government involvement in speech for the central media of our time was thus deflected on procedural grounds. Justice Samuel Alito, in a fiery dissent signed by Justices Clarence Thomas and Neil Gorsuch, criticized the punt, calling Murthy v. Missouri “one of the most important free speech cases to reach this Court in years.” Fortunately, NRA v. Vullo, discussed above, sets a solid baseline against government efforts to pressure private actors to do the government’s dirty work in suppressing speech the government does not like. Later cases will, we hope, expand upon that base. Secret communications from the government to the platforms to take down one post or another is inherently suspect under the Constitution and likely to lead us to a very un-American place. Let us hope that the Court selects a case in which it accepts the standing of the plaintiffs in order to give the government, and our society, a rule to live by. Gonzalez v. Trevino Protect The 1st has reported on the case of Sylvia Gonzalez, a former Castle Hills, Texas, council member who was arrested for allegedly tampering with government records back in 2019. In fact, she merely misplaced them, and was subsequently arrested, handcuffed, and detained in what was likely a retaliatory arrest for criticizing the city manager. In turn, Gonzalez brought suit. Gonzalez’s complaint noted that she was the only person charged in the past 10 years under the state’s government records law for temporarily misplacing government documents. In 2019’s Nieves v. Bartlett, the Supreme Court found that a plaintiff can generally bring a federal civil rights claim alleging retaliation if they can show that police did not have probable cause. The Court also allowed suit by plaintiffs claiming retaliatory arrests if they could show that others who engaged in the same supposedly illegal conduct, but who did not engage in protected but disfavored speech, were not arrested. The U.S. Court of Appeals for the Fifth Circuit threw out Gonzalez’s case, finding that she would have had to offer examples of those who had mishandled a government petition in the same way that she had but – unlike her – were not arrested. The Supreme Court, by contrast, found that, “[a]lthough the Nieves exception is slim, the demand for virtually identical and identifiable comparators goes too far.” The Court thus made it a bit easier for the victims of First Amendment retaliation to sue government officials who would punish people for disfavored speech. The controversy will now go back to the Fifth Circuit for reconsideration. *** While the Court avoided some potentially landmark decisions on procedural grounds, and offered a mixed bag of decisions concerning plaintiffs’ ability to obtain redress against potential First Amendment violations, the majority consistently showed a strong desire to protect First Amendment principles – shielding people and private organizations from government-compelled speech. When a federal judge recently ruled in favor of the Fellowship of Christian Athletes’ (FCA) right to register as an official student group at the Washington, D.C.-based Jackson-Reed High School, she smacked down a copycat challenge by educators that had already recently been rejected – twice – by the federal Ninth Circuit Court of Appeals.
This is the second major challenge to the FCA, an international ministry dedicated to engaging student-athletes in their Christian faith. The FCA had been removed before as an official student group by the San Jose school district, only to be reinstated in federal court. The school’s objected to the FCA's requirement for student leaders to adhere to its Statement of Faith, which among many other tenets includes traditional Christian views on marriage and sexual conduct. Not willing to accept this precedent, the District of Columbia Public Schools sought to exclude FCA at its Jackson-Reed High School. In her ruling, Judge Dabney L. Friedrich granted a preliminary injunction in favor of the FCA, emphasizing that the District's application of its Anti-Discrimination Policy was likely in violation of both the Religious Freedom Restoration Act (RFRA) and the Free Exercise Clause of the First Amendment. The court found that the school district was forcing the FCA to choose between maintaining its religious principles or jettison them to win official recognition, a choice not imposed on secular groups at the school. Judge Friedrich's opinion underscored the unequal treatment of the FCA compared to other student groups that also impose ideological requirements on their members. The court noted, “It makes equal sense that a religious group be allowed to require that its leaders agree with the group’s most fundamental beliefs.” This statement aligns with previous Ninth Circuit rulings which highlighted the discriminatory “double standard” applied against the FCA in similar cases. The court's conclusion was clear: “Antidiscrimination laws, like all other laws, must be applied evenhandedly and not in violation of the Constitution.” This reaffirms the principle that religious organizations should not be penalized for their beliefs, especially when similar secular groups are allowed to operate under their own sets of standards. This ruling not only reinstates the FCA at Jackson-Reed High School but should also reaffirm the Ninth Circuit’s precedent. The court's decision reflects a broader commitment to upholding First Amendment rights and ensuring that religious groups are treated fairly and without bias. This is a significant step forward in protecting religious freedom in educational settings, reminding institutions of the importance of mutual respect and tolerance for diverse beliefs. This should be the last word for some school administrators who want to lock the school door to keep out religious student organizations, but somehow, we doubt it will be. It is a rare day that a federal court can get the First Amendment so wrong. But a panel of the First Circuit Court of Appeals managed to do it.
In the 2021 local school board election in Bourne, Massachusetts, candidate Kari MacRae based her campaign on a promise to “fight woke values.” She posted on TikTok that “the reason why I’m taking on this responsibility is to ensure that students, at least in our town, are not being taught critical race theory.” She shared a meme that showed a man wearing a sport’s bra with the caption, “Equality doesn’t always mean equity.” You might deplore or “like” MacRae’s stance. But her comments clearly fall under the category of political speech, which courts have held is the most protected form of speech, subject to strict scrutiny when challenged by government restrictions. Clearly, many residents agreed with MacRae – she won her seat on the school board. That mandate, endorsed by the voters, did not stop the school district from firing her after she was later hired as a schoolteacher and these posts came to light. The First Circuit, in ruling against MacRae, cited precedent in which government employees were sanctioned for statements they made in an official capacity. Judge Ojetta Rogeriee Thompson wrote that “public employees’ First Amendment rights ‘are not absolute,’ and so public employees ‘by necessity must accept certain limitations on [their] freedom.’” The case she cited, Garcetti v. Ceballos (2006) concerned statements by an employee of the Los Angeles district attorney’s office about the veracity of facts in a warrant affidavit. The Supreme Court held that the DA’s office could discipline the employee for publicly contradicting his superiors. But MacRae did not make these statements as a teacher in a classroom. She made them as a private citizen running for office before she was even hired. The Wall Street Journal points out the obvious danger of this ruling: “The First Circuit’s decision delineates no statute of limitation or limiting principle to employee speech that government employers can punish. A teacher could be fired for hanging a ‘Make America Great Again’ flag at home. Political activity during college years could become grounds for dismissal.” Love or hate what McRae says, comments from her political campaign should not be cause for her dismissal as a teacher. The U.S. Supreme Court might find review of this case to be too tempting to ignore. Following the Oct. 7th atrocities committed against Israeli citizens, retaliatory attacks against Hamas with many innocents caught in the crossfire led to protests on campuses nationwide that shut down students’ freedom of movement and learning. Whatever one’s view of that conflict, it is undeniable that many anti-Israel protests turned into antisemitic persecution of students and faculty. Nowhere were these attacks as dark or troubling as those that occurred at the University of California, Los Angeles.
From April 25, 2024, to May 2, 2024, UCLA permitted a group of protestors to set up barricades in the heart of campus, creating what was widely termed a “Jew Exclusion Zone.” Activists locked arms, racially profiled students and faculty presumed to be Jewish, and refused to allow them access to campus or educational buildings unless someone vouched for their belief in the anti-Israel cause. The university, for its part, facilitated this occupation by failing to break up the blockade for a full week. Administrators even went so far as to hire private security to direct Jewish students away from the encampment, where calls for “death to Israel” and “death to Jews” were commonplace. As Chancellor Gene Block testified before Congress, events at UCLA reflected “the disturbing rise of antisemitism across our country since October 7th,” which placed Jewish students in “a state of anxiety and fear.” Now, the Becket Fund, representing three Jewish students from UCLA, is bringing suit against the university. As the plaintiff’s memorandum correctly alleges, the university’s acquiescence to the creation of a disruptive, discriminatory, and dangerous environment right in the heart of campus – in turn, preventing Jewish students from accessing public facilities – constitutes a violation of the Free Exercise Clause, the Free Speech Clause, and the Equal Protection Clause. It also implicates Title VI, which provides that “[n]o person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” The requested preliminary injunction would require that a plaintiff “establish[es] that he is likely to succeed on the merits, that he is likely to suffer irreparable harm” without issuance of an injunction, “that the balance of equities tips in his favor, and that an injunction is in the public interest.” The plaintiffs plainly meet those criteria. Without judicial intervention, there can be no guarantee that Jewish students will be able to safely access the public educational benefits to which they are entitled when they return to campus next month. As Becket Fund president Mark Rienzi said last month in congressional testimony, these episodes sound more like 1930s Germany than 2020s America. But there is a way forward. Rienzi said: “Together, we can defeat the scourge of antisemitism in our institutions of higher learning and society by ‘giving to bigotry no sanction, to persecution no assistance.’ Together, we can live up to George Washington’s promise that in this country, none shall be made afraid on account of his faith or ancestry. And together, we can ensure that the promises of our Constitution and our civil rights laws are kept and safeguarded.” Kudos to the Becket Fund for taking a stand against ignorance and intolerance. We’ll be following this case closely. When Louisiana passed a new law requiring the Ten Commandments to be displayed in all public classrooms, a debate began that will undoubtedly be resolved only in a federal court.
Defenders of the law point out that the Ten Commandments are foundational to Western civilization and much of American history. Doesn’t that justify their posting in terms of civic education? We agree that stripping all religion out of American education would be ahistorical. One cannot teach children about the origins of the American nation or the forces that sparked the American Civil War and the civil rights movement a century later without exploring the role of religion. Even in this context, however, the Ten Commandments seems more like an effort to impart religious moral guidance than teaching civics. Critics respond that the posters violate the First Amendment’s prohibition against the establishment of religion. Doesn’t that justify forbidding posting Judeo-Christian scripture? The American Civil Liberties Union contends that the Ten Commandments mandate constitutes an “unconstitutional religious coercion of students.” A federal court will have to determine if Louisiana’s Ten Commandment mandate violates the Establishment Clause under a historical understanding of similar laws at or near the time of the Bill of Right’s ratification. What is getting lost is that Louisiana is taking another step that presents a better way forward. The state is fostering educational pluralism in a way that includes those who seek a religious education for their children. Louisiana recently expanded its school choice program to allow for vouchers for families to choose private schools. The constitutionality of Louisiana’s school choice vouchers is enhanced by a Supreme Court decision, Carson v. Makin in 2022, and by other recent rulings holding that funding made available for secular schools must also be equitably available to religious schools. The new Louisiana vouchers will enable many children to attend quality private schools, whether religious schools or purely secular. All such schools must meet state standards in the teaching of science, history, civics, math, and other subjects. Enhancing the right of parents to choose values they want to extend to their children – whether secular or religious – is a fruitful path that manages to thread the needle for pluralism, educational standards, and, for those who choose it, a religious education. The U.S. Supreme Court recently ruled in NRA v. Vullo that New York Financial Services superintendent Maria Vullo unlawfully discriminated against a leading firearm advocacy organization by coercing financial institutions to de-bank them.
This case implicates a disturbing trend in corporate America far beyond the dictates of state regulators and politicians. In 2022, JPMorgan Chase 86’ed the bank account of the National Committee for Religious Freedom, run by former Kansas governor and U.S. Sen. Sam Brownback. The bank refused to reinstate the account unless NCRF disclosed its private donor information. The Alliance Defending Freedom fought back, spearheading a campaign against the bank that included the development of a “Viewpoint Diversity Score Business Index,” measuring private companies’ respect for religious freedom. According to ADF, Chase agreed to change its policies, committing “to ongoing engagement on how their company can protect free speech and religious liberty.” Under the law, large corporations are generally free to have opinions and to choose their customers. The First Amendment, after all, only applies to government actors like Commissioner Vullo, not to private entities like Chase. But the values of a First Amendment society are enabled and underscored by pluralism in the commercial sector. This is especially true for service providers like a bank and other businesses that offer public services, often under common carrier law. (For businesses that offer expressive services, from newspapers to social media providers, they have an absolute right to curate their content – though they, too, would do our society a civic good by allowing space for a wide diversity of viewpoints.) Americans should not have to be concerned about a potential loss of financial empowerment just because of their religious or political views. Corporate cancellations are a bad look. While companies may not be subject to First Amendment strictures, they surely are subject to public relations disasters. This was one of them. Protect The 1st congratulates Chase for listening and reversing its policy. NetChoice v. Texas, FloridaWhen the U.S. Supreme Court put challenges to Florida and Texas laws regulating social media content moderation on the docket, it seemed assured that this would be one of the yeastiest cases in recent memory. The Supreme Court’s majority opinion came out Monday morning. At first glance, the yeast did not rise after all. These cases were remanded back to the appellate courts for a more thorough review.
But a closer look at the opinion shows the Court offering close guidance to the appellate court, with serious rebukes of the Texas law. Anticipation was high for a more robust decision. The Court was to resolve a split between the Fifth Circuit, which upheld the Texas law prohibiting viewpoint discrimination by large social media platforms, while the Eleventh Circuit upheld the injunction against a Florida law regulating the deplatforming of political candidates. The Court’s ruling was expected to resolve once and for all the hot-button issue of whether Facebook and other major social media platforms can depost and deplatform. Instead, the Court found fault with the scope and precision of both the Fifth and the Eleventh Circuit opinions, vacating both of them. The majority opinion, authored by Justice Elena Kagan, found that the lower courts failed to consider the extent to which their ruling would affect social media services other than Facebook’s News feed, including entirely different digital animals, such as direct messages. The Supreme Court criticized the lower courts for not asking how each permutation of social media would be impacted by the Texas and Florida laws. Overall, the Supreme Court is telling the Fifth and Eleventh to drill down and spell out a more precise doctrine that will be a durable guide for First Amendment jurisprudence in social media content moderation. But today’s opinion also contained ringing calls for stronger enforcement of First Amendment principles. The Court explicitly rebuked the Fifth Circuit for approval of the Texas law, “whose decision rested on a serious misunderstanding of the First Amendment precedent and principle.” It pointed to a precedent, Miami Herald Publishing Co. v. Tornillo, in which the Court held that a newspaper could not be forced to run a political candidate’s reply to critical coverage. The opinion is rife with verbal minefields that will likely doom the efforts of Texas and Florida to enforce their content moderation laws. For example: “But this Court has many times held, in many contexts, that it is no job for government to decide what counts as the right balance of private expression – to ‘un-bias’ what it thinks is biased, rather than to leave such judgments to speakers and their audiences.” The Court delved into the reality of content moderation, noting that the “prioritization of content” selected by algorithms from among billions of posts and videos in a customized news feed necessarily involves judgment. An approach without standards would turn any social media site into a spewing firehose of disorganized mush. The Court issued a brutal account of the Texas law, which prohibits blocking posts “based on viewpoint.” The Court wrote: “But if the Texas law is enforced, the platforms could not – as they in fact do now – disfavor posts because they:
So what appeared on the surface to be a punt is really the Court’s call for a more fleshed out doctrine that respects the rights of private entities to manage their content without government interference. For a remand, this opinion is surprisingly strong – and strong in protection of the First Amendment. Drummond v. Oklahoma Statewide Virtual Charter School Board The Oklahoma Supreme Court ruled 7-1 this week against allowing public charter funds to support a virtual Catholic school, holding that the funding of online religious schools by the state to be unconstitutional.
“Today’s ruling is very disappointing for the hundreds of prospective students and their families from across the state of Oklahoma who desired the educational experience and promise of St. Isidore of Seville Catholic Virtual School,” the Archdiocese of Oklahoma City said in a statement. “We will consider all legal options and remain steadfast in our belief that St. Isidore would have and could still be a valuable asset to students, regardless of socioeconomic, race, or faith backgrounds.” Our take is that the Oklahoma Supreme Court’s opinion is buttoned down, logical, and eminently overturnable. It relies on that state’s version of a Blaine Amendment, a movement that gathered momentum when American politics was infected with anti-Catholic bigotry. In our view, publicly funded charter schools are similar to voucher programs, which are often given to religious schools that – in every state – must meet mandated standards in English, math, history, science, and other subjects. Taking the state’s money, in our view, would make St. Isidore a publicly funded school, but not a “public school.” Justice Dana Kuehn made a similar point in her lone dissent: “St. Isidore would not become a ‘state actor’ merely by contracting with the State to provide a choice in educational opportunities. By allowing St. Isidore to operate a virtual charter school, the State would not be establishing, aiding, or favoring any particular religious organization. To the contrary: Excluding private entities from contracting for functions, based solely on religious affiliation, would violate the Free Exercise Clause of the First Amendment to the United States Constitution.” The Oklahoma State Attorney General, Gentner Drummond – the petitioner filing against St. Isidore – likened the inclusion of a Catholic school to a private takeover of the operations of the Oklahoma Highway Patrol, rebranding it as the “Catholic Church Highway Patrol.” (Imagine the fun comedians would have with that, being pulled over for confession and then having the officer ask you, “sir, you know it’s Friday, is that meat on your breath?”) Justice Kuehn latched on the ridiculous nature of this metaphor. She wrote: “The logical flaw is that, unlike law enforcement, enrollment in a charter school is fundamentally a choice for parents to make. St. Isidore would not be ‘taking over’ any function that is traditionally the exclusive realm of the State. It would exist alongside state-mandated secular options.” Justice Kuehn is right. The issue here is that inclusion of St. Isidore would give the people of Oklahoma a choice in picking a school that would adhere to state-mandated standards, giving parents a choice for a rigorous education and the continuation of their cherished values. Justice Kuehn pointed to the U.S. Supreme Court’s striking down of a Montana Supreme Court opinion, Espinoza (2020). In that case, the Supreme Court ruled that a state-based scholarship program that provides public funds to allow students to attend private schools cannot discriminate against religious schools under the First Amendment’s Free Exercise Clause. Justice Kuehn predicts a similar result. Murthy v. Surgeon General: Supreme Court Punts on Social Media Censorship – Alito Pens Fiery Dissent6/26/2024
The expected landmark, decision-of-the-century, Supreme Court opinion on government interaction with social media content moderation and possible official censorship of Americans’ speech ended today not with a bang, not even with a whimper, but with a shrug.
The Justices ruled 6-3 in Murthy v. Missouri to overturn a lower court’s decision that found that the federal government likely violated the First Amendment rights of Missouri, Louisiana, and five individuals whose views were targeted by the government for expressing “misinformation.” The Court’s reasoning, long story short, is that the two states and five individuals lacked Article III standing to bring this suit. The court denied that the individuals could identify traceable past injuries to their speech rights. In short, a case that could have defined the limits of government involvement in speech for the central media of our time was deflected by the court largely on procedural grounds. Justice Samuel Alito, writing a dissent signed by Justices Clarence Thomas and Neil Gorsuch, implicitly criticized this punt, calling Murthy v. Surgeon General “one of the most important free speech cases to reach this Court in years.” He compared the Court’s stance in this case to the recent National Rifle Association v. Vullo, an opinion that boldly protected private speech from government coercion. The dissenters disagreed with the Court on one of the plaintiffs’ standing, finding that Jill Hines, a healthcare activist whose opinions on Covid-19 were blotted out at the request of the government, most definitely had standing to sue. Alito wrote: “If a President dislikes a particular newspaper, he (fortunately) lacks the ability to put the paper out of business. But for Facebook and many other social media platforms, the situation is fundamentally different. They are critically dependent on the protections provided by §230 of the Communications Decency Act of 1996 … For these and other reasons, internet platforms have a powerful incentive to please important federal officials …” We have long argued that when the government wants to weigh in on “misinformation” (and “disinformation” from malicious governments), it must do so publicly. Secret communications from the government to the platforms to take down one post or another is inherently offensive to the Constitution and likely to lead us to a very un-American place. Let us hope that the Court selects a case in which it accepts the standing of the plaintiffs in order to give the government, and our society, a rule to live by. Colorado's attempts to exclude Catholic preschools from its universal preschool program has faced another legal setback. A federal court in Colorado ruled that the state violated the Constitution by excluding religious schools based on their requirements for religious affiliation. This decision follows a lawsuit filed by St. Mary’s and St. Bernadette’s Catholic preschools, supported by the Becket Fund for Religious Liberty.
The court's 101-page opinion criticized Colorado's approach, stating it “created an unworkable scheme that breaches the appropriate limits on state power.” The court found no compelling interest for the state's exclusion of Catholic preschools. This decision marks the second federal court ruling against Colorado's universal preschool program. In 2022, Colorado launched its universal preschool program, aiming to provide 15 hours of free education per week to preschoolers at private or public schools chosen by their parents. Despite the program’s intent to be inclusive, the state's Department of Early Childhood imposed restrictions that excluded all Archdiocesan Catholic preschools, affecting over 1,500 children at 36 schools. The lawsuit argued that excluding these schools deprived families of critical resources based on their religious beliefs. The Supreme Court has repeatedly affirmed that the government cannot deny public benefits due to religious affiliation. This principle was upheld in the recent ruling, reinforcing the notion that “universal” should indeed mean universal. The court's decision underscores the importance of religious freedom in public benefit programs. As Nick Reaves, counsel at Becket, remarked, “Of course a Catholic school shouldn’t be punished for caring about its students’ religion.” The ruling emphasized that the state's exclusionary practices are not only unconstitutional but also unjust. At St. Bernadette’s, 86 percent of students qualify for free and reduced-price school meals, and 64 percent are English as a Second Language learners. St. Mary’s also supports many families through scholarships and tuition discounts. This legal victory for Catholic schools in Colorado may face further challenges. The state could appeal the decision to the Denver-based U.S. Court of Appeals for the Tenth Circuit. However, the ruling provides a strong precedent against religious discrimination in public programs. Colorado's attempt to exclude religious schools from its universal preschool program has been firmly rebuked by the courts. This case reaffirms the constitutional principle that public benefits cannot be denied based on religious beliefs, ensuring that all families have the freedom to choose the best educational environment for their children. Protect The 1st will be watching this case closely. Fourth Circuit Forces Parents to Decide Between Religious Values or a Free Public Education6/26/2024
Mahmoud v. McKnight A recent ruling by the Fourth Circuit Court of Appeals has struck a severe blow to the cause of parental rights and religious liberty. This contentious case revolved around the Montgomery County Board of Education's controversial decision to deny opt-out requests for certain LGBTQ+ inclusive texts used in K-5 classrooms.
As we’ve reported, parents argued that this policy infringed upon their First Amendment rights to shape their children's education regarding sexuality and gender, contending that it forced them into an untenable position: compromise their deeply held religious beliefs or withdraw their children from public education altogether. The Fourth Circuit Court of Appeals affirmed the district court's decision, denying the parents' request for a preliminary injunction. The court concluded that the parents failed to demonstrate a substantial burden on their religious exercise, determining that exposure to the inclusive texts did not amount to a violation of their religious rights. The ruling emphasized that the school's curriculum did not compel students to affirm or renounce any beliefs, but merely exposed them to diverse perspectives. Judge A. Marvin Quattlebaum issued a strong dissent in this case that should be required reading for anyone in need of a better understanding of the foundational importance of religious liberty. Judge Quattlebaum criticizes the majority for not recognizing the burden placed on parents' religious rights. He asserts that “the board's decision to deny religious opt-outs burdened these parents' right to exercise their religion and direct the religious upbringing of their children by putting them to the choice of either compromising their religious beliefs or foregoing a public education for their children.” A key point in Judge Quattlebaum's dissent is his emphasis on the non-neutrality and lack of general applicability of the board's actions. He argues that the board's decision was not neutral because it selectively imposed a burden on religious practices while accommodating other types of opt-outs, such as for Halloween or Valentine's Day celebrations. He asserts that the board's actions were discriminatory against religious beliefs, which is contrary to the First Amendment's protections. The judge writes: “The policy was neither neutral nor generally applicable because it invited the government ‘to decide which reasons for not complying with the policy are worthy of solicitude’ in its sole discretion.” Judge Quattlebaum also highlights that the parents were not attempting to ban the books but merely sought the ability to opt out. He points out that the school’s guidelines previously allowed for reasonable accommodations for religious beliefs, and the sudden reversal without clear justification exacerbates the burden on religious parents. He finds it problematic that the board changed its policy to no longer permit notice and opt-out options, a move he describes as an unexplained “about-face” that failed to consider the substantial impact on religious families. While the board aims to foster an inclusive environment, Judge Quattlebaum argues that this goal should not come at the expense of fundamental religious rights. As he says: “The board’s refusal to grant the parents’ requests for religious opt-outs to instruction with the books the board required be used to promote diversity and inclusivity to the LGBTQ+ community forces the parents to make a choice – either adhere to their faith or receive a free public education for their children. They cannot do both.” Judge Quattlebaum's dissent stands as a powerful defense of the fundamental right of parents to direct their children's education according to their beliefs. “Is the Liberty Bell all it’s cracked up to be?” Hear Rabbi Dr. Meir Soloveichik, director of the Zahava and Moshael Straus Center for Torah and Western Thought at Yeshiva University and the rabbi at Congregation Shearith Israel in Manhattan, make wisecracks and wise observations in the keynote address at Becket’s recent Canterbury gala. There are tens of thousands of after-hours student groups in high schools across the country – from those celebrating film, music, chess, or drama to those of a more political or religious nature. At Noblesville High School in Indiana, for example, you could join the Young Democrats, the Young Republicans, the Fellowship for Christian Athletes, or the Gender and Sexuality Alliance. The one group students can no longer join is the Noblesville Students for Life (NSFL).
In August 2021 a freshman at Noblesville received initial approval to start a Students for Life chapter, which attracted 30 student sign-ups at the school’s fall activities fair. The following month, the student organizer prepared a poster advertising a club meeting, which featured a photograph of students outside the U.S. Supreme Court holding up life-affirming protest signs. Then Noblesville’s principal “derecognized” the group, calling the poster “inappropriate” and too “political.” Noblesville, apparently, has a policy allowing administrators broad authority to issue prior restraints on student speech, barring “anything political in nature” as well as specific “political stance[s].” What constitutes “political” is entirely undefined and left up the whims of the individual administrator. In December 2021, in coordination with Charitable Allies, the group’s student organizer brought suit against the school district, alleging First Amendment retaliation. The suit also claimed violations of the Equal Access Act, which prohibits discrimination against the political content of student groups meeting outside of class. School administrators have every right to prevent students from engaging in disruptive conduct, but students have every right to express their First Amendment-protected viewpoints after hours. Schools are limited public fora, which may issue viewpoint-neutral restrictions on groups. What they should not do is bar targeted political speech and then make ad hoc, biased determinations of what is unacceptable on a case-by-case basis. How the school found NSFL overly political when the Young Democrats and Young Republicans are permitted to meet and advertise their meetings is unfathomable. The administrators, of course, now claim they derecognized the club because of the student’s behavior, an argument contradicted by the evidence and the many contextual clues pointed out by the plaintiffs. It seems pretty clear that the principal simply doesn’t want the pro-life viewpoint represented at Noblesville High. Ultimately, a District Court bought the school’s argument. Now the student is appealing to the Seventh Circuit, and this case is receiving legal backing from the Alliance Defending Freedom. We hope that the court will recognize that rules must be neutral and that students don’t relinquish their First Amendment rights at the schoolhouse door – no matter how much some administrators might wish it were so. The doxing of donors is a danger to our democracy.
When donors give to a controversial cause, they count on anonymity to protect them from public backlash. This is a principle enshrined in law since 1958, when the U.S. Supreme Court protected donors to the NAACP from forcible disclosure by the State of Alabama. Undeterred by this precedent, California tried to enforce a measure to capture the identities of donors and hold them in the office of that state’s attorney general, despite the fact that the California AG’s office has a history of leaks and data breaches. Surprisingly, the federal Ninth Circuit upheld that plan. Civil liberties groups filed briefs before the U.S. Supreme Court arguing that this policy is dangerous, not just to the robust practice of democracy, but to human lives. Citizens have lost their jobs, had their businesses threatened, and even been targeted for physical violence, all because they donated to a political or cultural cause. In 2021, the Supreme Court agreed, reversing a Ninth Circuit opinion in Americans for Prosperity v. Bonta. Still, the drive to expose donors – whether progressives going after gun rights organizations or conservatives going after protest organizations – remains a hot-button issue in state politics across the country. Politicians and groups are eager to know: Is George Soros or the Koch Foundation or name-your-favorite-nemesis giving money to a cause you oppose? Thanks to the work of the People United For Privacy (PUFP) foundation, that push to expose is now stopped cold in 20 states. With help from PUFP, bipartisan coalitions in 20 states have adopted the Personal Privacy Protection Act (PPPA) to provide a shield for donor privacy by protecting their anonymity. This movement is spreading across the country, with Alabama, Colorado, and Nebraska having passed some version of this law just this year. “Every American has the right to support causes they believe in without fear of harassment or abuse of their personal information,” says Heather Lauer, who heads People United for Privacy. “The PPPA is a commonsense measure embraced by lawmakers in both parties across the ideological spectrum.” Supporters have ranged from state chapters of the ACLU, NAACP, and Planned Parenthood to pro-life groups, gun rights groups, and free market think tanks. Thanks to this campaign, 40 percent of states now protect donors. For the remaining 60 percent, the power of the internet can expose donors’ home addresses, places of work, family members, and other private information to harassers. The need to enact this law in the remaining 30 states is urgent. Still, securing donor protection in 20 states is a remarkable record given that People United for Privacy was only founded in 2018. We look forward to supporting their efforts and seeing more wins for privacy in the next few years. Trademarks support brand integrity in the marketplace, including through certain restrictions on commercial speech. But what about the use of a living person’s name, specifically “Trump Too Small”? (If you don’t know what this means, we’ll let you Google it.) Merchant Steve Elster wanted to register that phrase as a trademark to sell T-shirts. The U.S. Patent and Trademark Office denied his application. A lower court, however, held that the government violated Elster’s First Amendment rights.
The Supreme Court today, in a unanimous decision, overturned that ruling and held that the phrase with the former president’s name cannot be trademarked. “Our courts have long recognized that trademarks containing names may be restricted,” Justice Clarence Thomas wrote for the majority. But such trademark restrictions, while “content-based” must be “viewpoint neutral.” Justice Barrett wrote that the “government can reasonably determine that, on the whole, protecting marks that include another living person’s name without consent risks undermining the goals of trademark.” This is in keeping with a 1946 trademark law that bans the registration of any trademark that uses a living person’s name without their written consent. Justice Sonia Sotomayor in a concurrence wrote that First Amendment considerations should be applied. She emphasized that First Amendment constraints can be respected without undermining traditional trademark rules. Both sides have a point in law and in principle. Not only did the Court protect the name of a living person, it also refused to enforce a government monopoly on a phrase about a presidential candidate. To take a more generic example, suppose someone trademarked a phrase about Trump or Biden being too old, or too extreme, or too apt to take vacations. Imagine the complexities of a marketplace with thousands of products engaging in a national discussion about presidential candidates with select phrases off limits to anyone who didn’t want to pay or seek written permission to use them. The Court was right to prevent commercial considerations from scissoring out pieces of the national debate. As a result of the Court’s decision, the public remains free to debate – in print, on T-shirts, on mugs, or on TV – the Goldilocks question of whether Trump is too small, too large, or just right. Now that is free speech. The media is abuzz today about the unanimous ruling by the U.S. Supreme Court that rejected a challenge to the Food and Drug Administration’s regulation for the use of the abortion drug mifepristone. What’s overlooked, however, is that the Court’s opinion, authored by Justice Brett Kavanaugh, firmly nails down the conscience right of physicians and healers to abstain from participating in abortions and prescribing mifepristone.
This opinion firms up national policy on conscience rights. At a time when some in the federal bureaucracy and the states seem determined to chip away at conscience rights, the Court’s opinion will act as a concrete bollard to block further efforts at encroachment. Justice Kavanaugh wrote that the Church Amendments, which prohibit the government from imposing requirements that violate the conscience rights of physicians and institutions, “allow doctors and other healthcare personnel to ‘refuse to perform or assist’ an abortion without punishment or discrimination from their employers.” The Court’s opinion also repeatedly quotes the Biden Administration in affirming that “federal conscience protections encompass ‘the doctor’s beliefs rather than particular procedures’ … As the Government points out, that strong protection for conscience remains true even in a so-called healthcare desert, where other doctors are not readily available.” The opinion notes as a matter of law and fact that federal conscience laws have protected pro-life doctors ever since the FDA approved mifepristone in 2000. The pro-life plaintiffs in this case argued that the Emergency Medical Treatment and Labor Act (EMTALA) might be interpreted to require individual emergency room doctors to participate in emergency abortions. But the administration rejected that reading of EMTALA, and the Court declared today “we agree with the Government’s view of EMTALA on that point.” These declarations are not as sensational as upholding a drug that is used for the majority of pregnancy terminations. From now on, however, any effort to restrict or violate the conscience rights of healers will go against the declared intent of the Biden Administration and the unanimous opinion of all nine Justices of the U.S. Supreme Court. Who qualifies as a journalist? Do you have to work for a mainstream media outlet? If you don’t have the imprimatur of an award-winning newspaper like The New York Times or Washington Post, does that negate your right to gather and convey information?
That seems to be the case in certain parts of Texas, where police have twice recently arrested private citizens for committing the crime of journalism. In 2021, the Fort Bend County Sheriff’s Office arrested and strip-searched Justin Pulliam – who posts on the YouTube channel Corruption Report – for filming police during a mental health call. Despite following police instructions to stand away from the interaction, Pulliam was charged with “Interference with Public Duties,” a Class B misdemeanor under Texas state law. It wasn’t the first time Pulliam had been legally harassed – earlier that year he was ejected from a press conference because authorities said he did not qualify as a journalist. A similar situation happened back in 2017, when Laredo police arrested citizen journalist Priscilla Villareal under a statute prohibiting the solicitation of nonpublic information where there is “intent to obtain a benefit.” AKA journalism. The Fifth Circuit initially sided with Villareal, with Judge Ho writing: “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.” Unfortunately, the full court backtracked during an en banc appeal, finding that city officials had qualified immunity. As we wrote at the time, that ruling set a terrible precedent for freedom of the press – sending a message that reporters should be wary of arrest and reprisal for daring to ask questions of government officials. Now, Pulliam’s case is up before the Fifth Circuit too, following a Texas district court’s rejection of the defendants’ qualified immunity argument. We’ll see whether the judges get it right this time and acknowledge that Corruption Report constitutes a “legitimate” media outlet. In Villareal’s case, Judge Edith Jones suggested that her Lagordiloca page was not. We respectfully disagree. Courts should not be in the business of determining who is and who is not a “legitimate” reporter according to platform or reporting style. The changing technological landscape has enfranchised a new class of citizen journalists no less deserving of respect and the protections of the First Amendment than their more well-heeled counterparts. Offering a step in the right direction, the Protect Reporters from Exploitive State Spying (PRESS) Act, introduced by Sen. Ron Wyden and Rep. Jamie Raskin, brings all sorts of journalists into the fold and provides a shield for reporters’ notes and sources from prying prosecutors. The PRESS Act defines a covered journalist as someone who “gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns news events or other matters of public interest for dissemination to the public.” That would certainly include Pulliam and Villareal. The House passed the PRESS Act by unanimous voice vote earlier this year. The Senate should follow up and send it to the president’s desk for signature. As for the Fifth Circuit, the Pulliam case is a great chance to revise its stance and catch up with the evolution of the fourth estate. Pew Research Center’s 14th annual study analyzing global restrictions on religion drew some disturbing conclusions, finding that state-sponsored harassment of religious groups reached an all-time high in 2021.
According to the study, governments across 183 countries (out of a total of 198) engaged in some degree of hostile acts or restrictive policies toward religious groups. The report splits its analysis into two categories – government restrictions on religion, and social hostilities toward religious minorities. While social hostility ticked down somewhat, the Government Restrictions Index (GRI) rose to 3.0 on a 10-point scale. While low on the overall scale, it reflects a jump up from 2.8 in 2020 – with heightened persecution in given regions raising the average global score. As Pew documents, government harassment was reported in each of the 20 countries in the Middle East-North Africa region, as well as in “43 of 45 countries in Europe (96 percent), 33 of 35 countries in the Americas (94 percent), 44 of 48 countries in sub-Saharan Africa (92 percent), and 43 of 50 countries in the Asia-Pacific region (86 percent).” The United States was rated as respecting religious practices overall but had instances in which religious freedom was not respected in practice. In the Netherlands, Party for Freedom leader Geert Wilders (a perennial favorite for such reports) called for countrywide “de-Islamization.” There have been proposals for “a series of measures including closing all mosques and Islamic schools, banning the Quran, and barring all asylum seekers and immigrants from Muslim-majority countries.” In Nicaragua, the president called Catholic clergy members “terrorists in cassocks” for supporting the country’s pro-democracy movement. In the Maldives, non-Muslims are outright prohibited from building places of worship or practicing their faith publicly. Two of the biggest offenders are Pakistan and Turkmenistan, the latter of which openly sanctions government harassment of some religious people. In one instance, Turkmenistan police detained groups of Muslim men and forced them to shave their beards and drink alcohol to prove that they weren’t “extremists.” Despite the fact that religious intolerance seems to be getting worse, it’s not all bad news – at least, not entirely so. Per the report, Sudan saw a large decrease in its GRI score, due largely to government reforms that decriminalized apostasy and “indecent dress.” Still, Pew’s report is a wakeup call – and a reminder that respecting religious freedom is an ideal to which not all aspire. Protecting the ability of people to worship freely requires ongoing vigilance and, most of all, compassion. In the United States, 94 percent of Americans believe religious freedom is a fundamental human right. Even here, the study found that the United States had “moderate” restrictions on religious freedom. We need to guard our American exceptionalism, which already is sometimes the result of a bright spot looking even brighter in contrast to surrounding darkness. William Schuck writing in a letter-to-the-editor in The Wall Street Journal:
“The world won’t end if Section 230 sunsets, but it’s better to fix it. Any of the following can be done with respect to First Amendment-protected speech, conduct and association: Require moderation to be transparent, fair (viewpoint and source neutral), consistent, and appealable; prohibit censorship and authorize a right of private action for violations; end immunity for censorship and let the legal system work out liability. “In any case, continue immunity for moderation of other activities (defamation, incitement to violence, obscenity, criminality, etc.), and give consumers better ways to screen out information they don’t want. Uphold free speech rather than the prejudices of weak minds.” The double standard in academia is reaching sickening levels.
At Rutgers, as at many universities, students who wear some outward sign of adhering to the Jewish faith, such as a kippah or a Star of David necklace, are often stopped and interrogated by self-appointed ideological vigilantes. At the same time, Jewish students are denied the right to hold a peaceful event on campus – including the forced cancellation of a peaceful, pro-Israel barbecue on the Rutgers University campus – out of fear of provoking violence from pro-Hamas protestors occupying the campus. When rhetoric gets violent and confrontation becomes intimidating, viewpoint discrimination edges into persecution. Yet many elite universities flirt with such danger. We would be justly outraged if a young woman on campus was harassed for wearing a hijab, or a young Sikh man was stopped and interrogated about his turban. Yet administrators at Rutgers and other institutions are often missing in action when the targets are Jewish students. A recently filed lawsuit by student Rebecca Schafer against Rutgers University shines a light on how escalating antisemitism on America’s university campuses shuts down speech and free inquiry. Schafer, an Orthodox Jewish student, sued the university after enduring months of harassment, intimidation, and discrimination, which she claims the administration failed to address. Schaffer recounts that eight days after the October 7th Hamas attacks on Israel, a student meeting at Demarest Hall took a dark turn when a student expressed joy over the high death toll in Israel, a sentiment that was met with approval from others. The dust had barely settled from this attack in which elderly Israelis were murdered and babies killed in their cribs. This disturbing incident was compounded when a mezuzah, a Jewish prayer scroll affixed to the doorposts of Jewish homes for protection and blessing, was torn from a student's door and discarded in a bathroom. Schafer left the meeting scared and shaking, feeling deeply threatened by the aggression toward her faith. Rebecca Schafer next became a personal target when posters with her photograph and pro-Palestinian slogans appeared outside her dorm room. This act of intimidation was terrifying for Schafer, leading to a police investigation and charges against two students. The chilling message was clear: “You aren’t safe anywhere at Rutgers.” At a recent House hearing in which Rutgers University President Jonathan Holloway and the presidents of other universities were grilled by Rep. Elise Stefanik (R-NY) and other Members, it came to light just how frightening campus occupations are for Jewish students. In a particularly egregious incident, a student directed the remark “Hitler would have loved you” at Schafer during an encampment. Schafer recounts that Jewish students were forced to flee out the back door of university buildings to escape the hostile environment. The portrait painted by Schafer’s lawsuit is of a spineless university administration leaving Jewish students to fend for themselves in the face of violent rhetoric and threats. The slow and methodical approach by Rutgers and other universities would never be tolerated if another ethnic or religious group were persecuted in such ways. When the fall semester begins in a few months, parents, students, and donors must demand college administrators react with alacrity to the persecution of Jewish students or be ready to give up their jobs. Protect The 1st will monitor this story as it develops. Heather Smith v. Blue Cross Blue Shield of Tennessee Employment in America is “at will.” This means employers can fire an employee without warning, provided that the action is not based on race, gender, or a few other protected categories. A case in Tennessee tests the premise that Blue Cross Blue Shield of Tennessee was within its rights to fire employee Heather Smith in retaliation for her sending emails to state legislators about her religious objections to her employer’s Covid-19 vaccine mandates.
In short, what happens when the unstoppable force of a woman exercising her First Amendment right to petition the government slams headfirst into the immovable force of America’s at-will doctrine of employment? A district court in Tennessee sided with the immovable force, granting a motion to dismiss out of recognition of the doctrine of at-will employment. The Tennessee Court of Appeals reversed that ruling, upholding Smith’s right to petition. The court found that “firing an at-will employee merely for writing to the Tennessee General Assembly is a bridge too far.” On Thursday, this case was heard by the Supreme Court of Tennessee. (Oral arguments get interesting with the court’s grilling of Smith’s attorney, Steve Duggins, at the 35:30 mark. Credit to the Tennessee Supreme Court, by the way, for holding this case in front of an audience of high school seniors in the Boys State program.) “A democracy cannot properly function if its citizens cannot freely communicate with their representatives,” Duggins told the court. Justice Jeff Bivins asked if the First Amendment protected an employee who bad-mouthed her employer to random people in a town square. Duggins agreed that person could be fired. Duggins based his demonstration on the Tennessee Constitution. He reinforced arguments made by an American Civil Liberties Union amicus brief based on article I, section 23 of the Tennessee Constitution that grants a broad, positive right to petition “their representatives.” But are the First Amendment implications in this case that clear? Courts have found in the language of the First Amendment an implied right to freedom of association. Blue Cross Blue Shield has its own associational and speech rights. Employers thus have a clear right to disassociate themselves from employees who contradict their policies. If the Tennessee Supreme Court sides with Blue Cross, would that mean that the Tennessee Constitution conflicts with the First Amendment? Such cases present a spaghetti-like tangle of conflicting issues. Another example: Protect The 1st Senior Legal Advisor Eugene Volokh recently analyzed the case of a woman who took a selfie in front of the U.S. Capitol before the riots began on Jan. 6, 2021. She posted it on her Facebook account. Her employer in California falsely assumed she was one of the rioters and fired her. Was that an illicit punishment of protected political speech, or a company upholding its associational rights? We look forward to seeing how in this Tennessee case the state Supreme Court untangles such strands. The Lone Star State is back on track to enact comprehensive school choice legislation. Gov. Greg Abbott has secured enough votes in the Texas House to advance his ambitious school-choice agenda. With the likely adoption of school choice in the nation’s second-most populous state, the national sweep of school choice will gain even more momentum.
The renewed school choice agenda in Texas follows primary runoff elections reflecting strong support for educational vouchers among Texans. Gov. Abbott’s campaign to replace anti-voucher Republicans with pro-voucher candidates yielded impressive results. Eleven out of the 15 Republican challengers he backed defeated House incumbents in their primaries. This victory is seen as a monumental shift in favor of school choice. Tommy Schultz, CEO of the American Federation for Children Victory Fund, described these GOP elections as the "single biggest movement in favor of school choice in modern history." The success of Abbott’s endorsed candidates reflects the growing demand for educational freedom and parental empowerment in Texas. The journey has not been without challenges. Last year, many House Republicans voted against expanding school choice, stopping Abbott’s proposal cold. Their opposition was largely due to concerns from rural districts about potential cuts to public education funding – despite assurances that Texas would keep these districts whole. Gov. Abbott’s renewed momentum in Texas suggests a strong potential for change. Pro-voucher Republicans now hold a majority in the House, with 77 members in the 150-member chamber. This shift sets the stage for the potential passage of significant school choice legislation in the near future. Protect The 1st sees school choice movements like the one in Texas as a fundamental expression of First Amendment rights. By empowering parents to choose the best educational pathways for their children, school choice promotes values and heritage across generations. The broad support for school choice among Americans, including significant backing from minority communities and a substantial portion of Democrats, reflects its widespread appeal. Gov. Abbott’s primary victories mark a crucial turning point for school choice in Texas and the nation. In March, Alabama became the 11th state to embrace universal school choice. Tennessee is edging ever closer to adopting statewide school choice. If, as seems likely, a school choice success in Texas would make a dozen states – about one-quarter of all states – now with comprehensive or universal school choice. “At the heart of the First Amendment’s Free Speech Clause is the recognition that viewpoint discrimination is uniquely harmful to a free and democratic society.”
This declaration comes from a unanimous opinion, authored by Justice Sonia Sotomayor, that clears the way for the National Rifle Association to pursue a First Amendment claim against a New York insurance regulator who had twisted the arms of insurance companies and banks to blacklist the Second Amendment advocacy group. The NRA was represented by Protect The 1st Senior Legal Advisor Eugene Volokh, as well as the American Civil Liberties Union. Maria T. Vullo, superintendent of New York’s Department of Financial Services, had earlier found that NRA’s affinity insurance benefits for members were constructed and sold in a way that violated New York law. Vullo then pushed beyond her regulatory purview into an attempt to punish speech. Vullo met with Lloyd’s of London executives in 2018 to bring to their attention technical infractions that plagued the affinity insurance market in New York, unrelated to NRA business. Vullo told the executives that she would be “less interested” in pursuing these infractions “so long as Lloyd’s ceased providing insurance to gun groups.” She added that she would “focus” her enforcement actions “solely” on the syndicates with ties to the NRA, “and ignore other syndicates writing similar policies.” Vullo followed up with guidance letters to insurance companies and financial services firms extolling the severance of ties with the NRA as a way for companies to fulfill their “corporate social responsibility.” “As alleged, Vullo’s communications with Lloyd’s can be reasonably understood as a threat or as an inducement,” the Court found. “Either of those can be coercive.” The Court quoted a Seventh Circuit opinion regarding a sheriff who interfered with a website by coercing its payment-services providers: “The analogy is to killing a person by cutting off his oxygen rather than by shooting him.” The core of the Court’s opinion rested on Bantam Books v. Sullivan, which involved a Rhode Island state commission that sought to censor books by prohibiting distributors from moving targeted books to stores. Compliance was assured by police offers dispatched to the distribution companies to check their records. The Supreme Court held that the commission’s actions amounted to censorship. In this case, the Court found: “Ultimately, Bantam Books stands for the principle that a government official cannot do indirectly what she is barred from doing directly: A government official cannot coerce a private party to punish or suppress disfavored speech on her behalf.” The Supreme Court’s opinion vacates the Second Circuit’s reversal of a lower court opinion, and remands it for adjudication under this ruling. When that case is heard again, the judges of the Second Circuit will have these words of this unanimous opinion ringing in their ears: “[T]he critical takeaway is that the First Amendment prohibits government officials from wielding their power selectively to punish or suppress speech, directly or (as alleged here) through private intermediaries.” The House Energy and Commerce Committee recently held a hearing on a bill that would sunset Section 230 of the Communications Decency Act within 18 months. This proposed legislation, introduced by Chair Cathy McMorris Rodgers and Ranking Member Frank Pallone, aims to force Big Tech to collaborate with Congress to establish a new framework for liability. This push to end Section 230 has reopened the debate about the future of online speech and the protections that underpin it.
Section 230 has been a cornerstone of internet freedom, allowing online platforms to host user-generated content without being liable for what their users post. This legal shield has enabled the growth of vibrant online communities, empowered individuals to express themselves freely, and supported small businesses and startups in the digital economy. The bill’s proponents claim that Section 230 has outlived its usefulness and is now contributing to a dangerous online environment. This perspective suggests that without the threat of liability, platforms have little incentive to protect users from predators, drug dealers, and other malicious actors. We acknowledge the problems. But without Section 230, social media platforms would either become overly cautious, censoring a wide range of lawful content to avoid potential lawsuits, or they might avoid moderating content altogether to escape liability. This could lead to a less free and more chaotic internet, contrary to the bill’s intentions. It is especially necessary for social media sites to reveal when they’ve been asked by agents of the FBI and other federal agencies to remove content because it constitutes “disinformation.” When the government makes a request of a highly regulated business, it is not treated by that business as a request. This is government censorship by another name. If the government believes a post is from a foreign troll, or foments dangerous advice, it should log its objection on a public, searchable database. Any changes to Section 230 must carefully balance the need to protect users from harm with the imperative to uphold free speech. Sweeping changes or outright repeal would stifle innovation and silence marginalized voices. Protect The 1st looks forward to further participation in this debate. |
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