Supreme Court Overturns Campaign Loan Repayment Limit
The Supreme Court today in a 6-3 decision overturned Section 304 of the Bipartisan Campaign Reform Act, declaring in a majority opinion that the law impermissibly “burdens core political speech.”
This case, provoked by a deliberate violation of the regulation by Sen. Ted Cruz, concerned whether a candidate for federal office could be repaid after the election for borrowed funds of more than $250,000.
The majority opinion cited our Protect The First Foundation’s amicus brief, which provided evidence that Section 304 inhibits candidates’ speech. As we explained in our brief: “The loan repayment limit … burdens challengers by deterring them from raising money from one of the few sources that may be available to them early in their campaigns: a personal loan.”
Justice Elena Kagan in her dissent claimed that the law prevents “political contributions that will line a candidates’ own pockets.” Writing for the majority, Chief Justice John Roberts responded that “we are talking about repayment of a loan, not a gift.”
Once again, the Court has recognized that many restrictions on campaign spending are restrictions on speech. Protect The 1st is pleased to have contributed to this significant First Amendment victory.
Protect The 1st applauds the decision of the American Civil Liberties Union to support Elon Musk’s promise to readmit former President Donald Trump to Twitter.
ACLU executive director Anthony D. Romero issued a forthright statement:
“You’d be hard-pressed to find a more steadfast opponent of Trump and his policies than the ACLU, but Elon Musk’s decision to re-platform President Trump is the right call. When a handful of individuals possess so much power over the most important forums for political speech, they should exercise that power with restraint. If Trump violates the platform rules again, Twitter should first employ lesser penalties like removing the offending post — rather than banning a political figure.
“Like it or not, President Trump is one of the most important political figures in this country, and the public has a strong interest in hearing his speech. Indeed, some of Trump’s most offensive tweets ended up being critical evidence in lawsuits filed against him and his administration. And we should know — we filed over 400 legal actions against him.”
Protect The 1st upholds the First Amendment right of Twitter to manage its content. However, when most of the nation’s public discourse is conducted on a handful of platforms, we cannot ignore the impact of the de-platforming of a major national figure. Whatever one believes about the former president, the time has come for liberals and conservatives to once again trust that the long, arduous process of working out major issues through unfettered speech ultimately delivers the best results.
To believe otherwise is to disbelieve in democracy.
The Ninth Circuit Court of Appeals in San Francisco denied an en banc hearing for plaintiffs in Slockish v. U.S. Federal Highway Administration. The decision denies the opportunity to consider the merits of a religious liberty case filed by an American religious minority.
Hereditary chiefs Wilbur Slockish and Johnny Jackson, spiritual leaders of the Klickitat and Cascade Tribes of the Yakama Nation in Eastern Oregon, had sued the government after it had bulldozed their ancestral burial grounds. These lands had been used by the Yakima for centuries for vision quests, water ceremonies, to gather food and medicine, and bury their dead. The Federal Highway Administration razed these burial grounds, destroyed a sacred stone altar, and removed safe access to the site. Protect The First Foundation and the Harvard Law School Religious Freedom Clinic joined a coalition of religious liberty groups to brief the court on the facts and principles of this case.
In this denial, the Ninth Circuit missed an opportunity to stand up not just for the religious rights of Native Americans, but also to recognize the protections of the Religious Freedom Restoration Act and the Free Exercise Clause of the U.S. Constitution. At stake are not just the rights of the Yakama tribes, but also the rights of Jews, Catholics and Protestants, Sikhs, Muslims, and Americans of all religions.
Fortunately, there is another opportunity for the court to take a stand for religious liberty.
Protect The 1st is hopeful that the Ninth Circuit will take a more favorable stance for the Apache tribes of Arizona, whose sacred lands at Oak Flat in the Tonto National Forest are being transferred by the government to a foreign mining company.
Sens. Dianne Feinstein, Tim Scott Lead Bipartisan Protest of Proposed Education Department Rules on Charter Schools
Educating children in the fundamentals is essential to the full expression of the First Amendment. As a Texas statesman said, “a cultivated mind is the guardian genius of democracy.”
For 3.4 million American students, charter schools provide a quality alternative to failing public schools. For minority and low-income communities, charter schools are a lifeline for children to escape from intergenerational poverty to success. A Harvard study on changes in student performance on the National Assessment of Educational Progress from 2005 through 2017 reported that black eighth graders at charter schools were six months ahead of their district public school peers.
Why then, is the U.S. Department of Education proposing rules that would alter the purpose of the Charter Schools Programs (CSP), designed by Congress to support the creation of new charter schools, replicate the highest-quality schools, and share information about best practices?
If the federal agency gets its way, that lifeline might be shortened, or cut altogether. An initiative from the department – described by the National Alliance for Public Charter Schools as “a sneak attack on charter schools” – would empower federal reviewers to ignore state and local decisions to authorize new public schools.
During the Covid pandemic and the academic year of 2020-2021, 240,000 new students enrolled in charter schools, representing a seven percent growth rate from the previous year. The CSP-enabled growth is now endangered by a plethora of proposed federal rules that would choke off one of the bright spots in American education.
“Make no mistake,” declares the Alliance, “this is a back-door attempt to prevent new charter schools from opening – contrary to the very purpose of the CSP.”
On Thursday, a bipartisan group of U.S. Senators, led by Sens. Dianne Feinstein (D-CA), and Tim Scott, (R-SC), fired off a letter of protest to Education Secretary Miguel Cardona.
“We are concerned that these requirements would make it difficult, if not impossible, for new public charter schools start-ups, and for high-performing public charter schools seeking to replicate or expand, to access CSP funding,” wrote the senators. “In addition, the proposed rule would add significant burdens and time to an already complex application process, with little time for technical assistance, particularly for the upcoming 2022 grant cycle.”
Other signatories include: Senators Cory Booker, (D-NJ), Michael Bennet, (D-CO), Richard Burr (R-NC), Bill Cassidy (R-LA), and Marco Rubio (R-FL).
The House Judiciary Committee recently passed – on a unanimous and bipartisan basis – the Protect Reporters from Exploitive State Spying (PRESS) Act. This measure would establish a federal statutory privilege that would shield journalists from being compelled to reveal confidential sources and would protect those sources from federal law enforcement subpoenas.
This is popular legislation – sure to pass by a wide margin should it come to the House floor. Most Members of Congress, like the voters who elected them, understand that the ability of journalists to grant confidentiality to whistleblowers and other sources enables the exposure of hidden abuses by the powerful. This practice, well in place since the Pentagon Papers, refreshes democracy, stimulating reform, debate and improvement.
This practice sounds great to most everyone, until it is one’s own ox that gets gored by someone whose politics you dislike.
Consider Project Veritas. When we criticized the FBI for its lengthy, intrusive violation of Project Veritas’ notes, emails, calls, and confiscation of their digital devices, some of our liberal friends raised an eyebrow. Project Veritas exists at the intersection of conservative activism and journalism, prompting liberal targets into admitting things in private they’d never say in public.
Many liberals continue to argue Project Veritas should be investigated in the case of the missing diary of President Biden’s daughter, though the group insists it reported the diary to the authorities.
Now, it is the turn of many conservatives to demand a strenuous investigation into the leaking of Justice Samuel Alito’s draft opinion overturning Roe v. Wade. For the record, we agree that the Marshal of the Supreme Court should investigate and expose the person who leaked this opinion to Politico. That was a vile act, one that undermines the Court’s professional culture of civility. The leaker deserves to be punished.
The danger in this case is that the Court’s urgent need to find the leaker, and the anger of many powerful conservatives, could persuade the FBI it has carte blanche to secretly examine phone logs and old emails traded by journalists Josh Gerstein and Alexander Ward with their source.
Using such a subpoena might expose a wrongdoer working in the Supreme Court. It would also have the effect of degrading the ability of journalists in the future to protect their sources.
Admittedly, there is a thin and uncomfortable line between trying to catch a leaker on the administrative side, while protecting that same person when he or she becomes a source on the journalistic side. It is also a difficult line to walk when you despise the politics of the side that benefits from the leak. But it is a line that must be respected for the sake of us all, on all sides of every debate.
“Our liberty depends on the freedom of the press,” Thomas Jefferson said, “and that cannot be limited without being lost.”
The surest way to ensure we don’t have to continually face these temptations to intrude into the freedom of journalists is to pass the PRESS Act.
The City of Boston was kicked to the curb by the U.S. Supreme Court for its effort to deny a group, Camp Constitution, the ability to use a public flagpole to raise its flag sporting a Latin Cross, while allowing 284 other flag-raising events from groups with a variety of messages. As Justice Neil Gorsuch noted: “Not a single member of the Court seeks to defend Boston’s view that a municipal policy allowing all groups to fly their flags, secular and religious alike, would offend the Establishment Clause.”
Justice Stephen Breyer, writing for the majority, wrote: “[T]he city’s lack of meaningful involvement in the selection of flags or the crafting of their messages leads us to classify the flag raisings as private, not government, speech ....” He concluded that since it was not government speech, the Camp Constitution’s flag could not violate the Establishment Clause. Excluding it was a violation of the Free Speech Clause.
Justice Breyer added:
“When a government does not speak for itself, it may not exclude speech based on ‘religious viewpoint’; doing so ‘constitutes impermissible viewpoint discrimination.’”
Justice Brett Kavanaugh, in his concurring opinion, found:
“As this Court has repeatedly made clear, however, a government does not violate the Establishment Clause merely because it treats religious persons, organizations, and speech equally with secular persons, organizations, and speech in public programs, benefits, facilities, and the like … On the contrary, a government violates the Constitution when (as here) it excludes religious persons, organizations, or speech because of religion …”
The majority noted that precedent held that trademarks were not government speech simply because the Patent and Trademark Office “registered all manner of marks and normally did not consider their viewpoint … Boston’s come-one-come-all attitude—except, that is, for Camp Constitution’s religious flag—is similar.”
Boston had argued that the display of a flag with a Christian motif would constitute government speech endorsing one religion over another. Justice Samuel Alito made a number of points that corresponded with the amicus brief of the Protect The First Foundation. He responded that “speech by a private individual or group cannot constitute government speech if the government does not attempt to control the message.” Justice Alito extended that reasoning to raise the specter of censorship in an expansive definition of “government speech.”
Concerned about the blurring of lines between government and private speech, Justice Alito suggested a new test under which two conditions are needed to satisfy ‘government’ speech protected from a challenge based on the Free Speech Clause. First, it must show that the challenged activity is purposeful communication of a governmentally determined message by a person empowered to speak for the government. Second, the government must establish it did not rely on a means that abridges the speech of private persons:
“Under the resulting view, government speech occurs if—but only if—a government purposefully expresses a message of its own through persons authorized to speak on its behalf, and in doing so, does not rely on a means that abridges private speech …
“So government speech in the literal sense is not exempt from First Amendment attack if it uses a means that restricts private expression in a way that ‘abridges’ the freedom of speech, as is the case with compelled speech. Were it otherwise, virtually every government action that regulates private speech would, paradoxically, qualify as government speech unregulated by the First Amendment. Naked censorship of a speaker based on viewpoint, for example, might well constitute ‘expression’ in the thin sense that it conveys the government’s disapproval of the speaker’s message. But plainly that kind of action cannot fall beyond the reach of the First Amendment.”
Justice Alito warned that even if the government is conveying its own message, however, it still might find ways to abridge private speech.
The facts of this case are local and, on the surface, trivial. But today’s opinions suggested that Shurtleff v. Boston will become a precedent resolving the tension between the Establishment Clause forbidding an official religion and the Free Speech Clause. It is likely to be cited for creating a more generous precedent for religious speech than the 1971 Lemon case, which the late Justice Antonin Scalia likened to a “ghoul in a late-night horror movie.”
Shurtleff is sure to guide many future cases in the protection of religious speech.
As Elon Musk noisily wrestles with the complexities of bringing a wide venue for speech on Twitter, former President Barack Obama – whose administration was largely hands-off when it came to regulating Silicon Valley – is calling on the federal government and social media companies to do more to stem the spread of misinformation.
In a recent keynote to a Stanford University symposium, Obama discussed myriad ways misinformation threatens democracies. He centered his vision for reform around Section 230, which currently grants social media companies liability protection in court for speech generated by users.
Obama praised the internet for connecting people around the world, making economies more efficient, and even for playing a key role in his election. “I might never have been elected president if it hadn’t been for websites like, and I’m dating myself, MySpace, MeetUp and Facebook that allowed an army of young volunteers to organize, raise money, spread our message,” he said. “That’s what elected me. But like all advances in technology, this progress has had unintended consequences that sometimes come at a price. And in this case, we see that our new information ecosystem is turbocharging some of humanity’s worst impulses.”
Obama’s prescription to help fix the problem did not include attempts to get rid of all offensive or inflammatory content on the web. “That is a straw man,” said Obama. “We’d be wrong to try. Freedom of speech is at the heart of every democratic society, (and) in America those protections are enshrined in the First Amendment to our Constitution. There’s a reason it came first in the Bill of Rights.
“I’m pretty close to a First Amendment absolutist. I believe that in most instances the answer to bad speech is good speech. I believe that the free, robust, sometimes antagonistic exchange of ideas produces better outcomes and a healthier society.”
The former president said tech companies need to be more aggressive in self-policing and more transparent in their operations, while the federal government now has a responsibility to take additional steps.
“And while I’m not convinced that wholesale repeal of Section 230 is the answer, it is clear that tech companies have changed dramatically over the last 20 years,” said Obama. “And we need to consider reforms to Section 230 to account for those changes, including whether platforms should be required to have a higher standard of care, when it comes to advertising on their site.”
As for precedents, the former president cited a “long history of regulating new technologies in the name of public safety,” including cars, pharmaceuticals, and food products.
“This may seem like an odd example and forgive me, you vegans out there, but if a meat packing company has a proprietary technique to keep our hot dogs fresh and clean, they don’t have to reveal to the world what that technique is. They do have to tell the meat inspector.”
The president endorsed the bipartisan Platform Accountability and Transparency Act, or PATA, which would require social media companies to report their internal, proprietary operations to independent researchers – the meat inspectors in the president’s metaphor – who would examine this data and release findings on platforms’ impacts on the public.
In an earlier iteration of this blog, we erroneously reported that the president had endorsed the almost identically named Platform Accountability and Consumer Transparency Act. Apologies aside, we still believe the president’s ideas would best be expressed by passage of the PACT Act — sponsored by Sens. Brian Schatz (D-HI) and John Thune (R-SD). The PACT Act would require social media companies that enjoy liability protection to have clear and easy-to-understand standards for the removal of offensive posts. Platforms would also have to afford users due process, allowing them to appeal for quick resolution of complaints.
The key to the PACT Act isn’t government inspection of data and algorithms. It is balance – transparency for all users and the right to contest a deleted post or deplatformed website. That’s the better way to make a hotdog.
Harvard University canceled its invitation to a feminist philosopher who was prepared to talk on British romanticism because she had, in her other writings, expressed disagreement with the tenets of transgender ideology that prevail in academia.
Dr. Devin Buckley had asserted that sex is immutable and that the inclusion of transgender women in women’s sports violates “fair play on sports teams.” Dr. Buckley also questioned the growing practice of putting transgendered females in women’s prisons. For such atrocities, she was cancelled by Erin Saladin, coordinator of the Harvard English Department, who “found at least one piece of her writing online that explicitly denies the possibility of trans identity.”
Whatever one’s views on the psychological and social reality of transgenderism, the cancelling of scholars like Dr. Buckley – or the exclusion of celebrity writer J.K. Rowling from Harry Potter events – will not settle any questions or win over hearts and minds. The views in the Harvard English Department notwithstanding, the statements of Buckley and Rowling are hardly outside of the mainstream of public opinion.
“I have never written anything hateful towards any transgender individual,” Dr. Buckley told National Review. “I’ve been shunned and ostracized by people at my graduate program. I’ve had people walk down the street refusing to acknowledge that I exist in ritualized shunning and social cancellation.”
The same First Amendment that protects Dr. Buckley’s speech also protects Harvard’s right to disinvite her. But a robust culture of speech rests not just on legal protections, but also on a willingness to engage those with whom we disagree. Harvard is poorer for its unwillingness to engage contrary views.
As for Dr. Buckley, she says, “For my part, I’d rather be damned with the Romantics and Plato than go to woke heaven with Erin and the Harvard faculty.”
Whether one agrees with her sentiment or not, there’s no denying that the Harvard educational experience is diminished when people with her views are denied the opportunity to share them.
Protect The 1st is optimistic that Elon Musk will bring greater transparency, openness and respect for free speech to Twitter. The platform’s content moderation process was too opaque to generate much trust. Twitter should build trust in its political neutrality, neither favoring content from the right or from the left. Musk promises to do that.
Knotty issues remain, however. Will Musk give space to absolutely all views? What if someone tweets that one ethnic or religious group or another is spreading Covid-19? Where do we draw the line between a controversial idea, a conspiracy theory, and an assertion that could promote violence? Or will Musk have no content moderation, with maximum trust placed in the intelligence and goodwill of the users?
The change Musk promises is welcome. But the protection of free speech in democracy’s town hall shouldn’t rely on the judgment of one man, no matter how prolific, much less on a small and largely unseen group of content moderators. Protect The 1st continues to support the PACT Act, a bipartisan Senate bill that would establish transparency in content moderation decisions and give the cancelled some right of redress in exchange for the liability protections all social media platforms enjoy.
We predict that as Musk manages these contentious issues, he will be forced more than once to adjust. But his is a brave undertaking and one we hope Musk succeeds at as brilliantly as he has done with electric cars and space travel.
Coach Kennedy v. Bremerton School DistricT
Joe Kennedy – the “praying coach” fired by the Bremerton, Washington, school district for praying on the 50-yard-line after games were concluded – enjoyed mostly friendly questioning in oral argument before the U.S. Supreme Court today.
Justices Samuel Alito, Neil Gorsuch, Clarence Thomas and Brett Kavanaugh all framed most of their questions in terms sympathetic to Coach Kennedy. Given the record of Justice Amy Coney Barrett of support for religious expression, some long-time observers of the Court predicted today’s hearing suggests an eventual 6-3 ruling in favor of upholding the coach’s prayer as a legitimate and private expression of faith by a government employee.
The school district had argued that athletes could feel pressure to participate in prayers with a coach who decides who plays and who does not. “We’re worried that the students will feel he gets to put me into a football game, or not,” said Justice Elena Kagan to Kennedy’s lawyer. But the school district’s contention that Coach Kennedy made a spectacle of his prayer was knocked down by Justice Brett Kavanaugh, who questioned the practicality of drawing a line around private prayer that must not draw anyone’s attention.
The assertion by the school district’s lawyers that Kennedy’s actions amounted to government speech, however, fell flattest of all.
The tenor of the Justices’ questioning echoed the brief filed by Protect the 1st, which offered many examples of how far the First Amendment’s prohibition of “no establishment of religion” can go with a government employee before violating that same amendment’s promise to protect the free exercise of religion.
In the brief of our legal arm, the Protect the First Foundation, we noted that government employees, including teachers, often wear religious garments and undertake short, devotional expressions of faith at work without violating policy. Native Americans wear eagle feathers, Christians show up to work on Ash Wednesday with a smudge on their foreheads, Muslim women wear headscarves, Jewish and Muslim men wear prayer caps. A teacher who is Christian might say grace before lunch. A Muslim teacher might pray during a break between classes.
All these actions are routine expressions of private faith that do not in any way constitute government speech. Taken literally, a strict effort to block out all such religious characteristics of government employees would quickly turn oppressive.
Based on today’s oral argument, Protect The 1st is optimistic the court will see that expressions of faith by public employees deserve protection.
Is speech that produces emotional injury a form of stalking? Or is speech – private speech about deeply personal matters – protected by the Constitution? The latter is the case Protect the First Foundation made before the District of Columbia Court of Appeals in a highly charged case about accusations of adultery in the workplace.
It all began when a Washington, D.C., executive, received an email from a distraught husband accusing him of having had an affair with his wife when she worked at his firm as an intern. Messages were sent by email and Facebook to the executive’s network of coworkers, family and friends.
Public shaming in the digital age can be robust, vivid, instantaneous and comprehensive. But is it cause for a civil protection order?
Protect the First Foundation is asking the District of Columbia’s highest court to revisit the implications of a judgment upholding a D.C. stalking statute that defines it as a crime to “directly or indirectly … in person or by any means, on two or more occasions” to communicate “about another individual” where the speaker “should have known” that such communications would cause “significant mental suffering or distress.”
The D.C. law does include exceptions for constitutionally protected speech, such as protests. Thus, the depraved people who inflict emotional distress on the relatives of fallen soldiers at funerals – or neo-Nazis who parade through neighborhoods of elderly Holocaust victims and their descendants – are exercising protected speech. But people who talk trash about someone are not?
If rigorously enforced, the District of Columbia might have to slap a civil order on most of its adult citizens. For those who continue to defy the law, perhaps their internment could define a new use for RFK Stadium.
Fortunately, precedent points to a different conclusion. In our brief, we noted that the Supreme Court made clear in Engquist v. Oregon Dep’t Agric (2008) that government cannot “generally prohibit or punish, in its capacity as sovereign, speech on the grounds that it does not touch upon matters of public concern.”
Well established First Amendment exceptions remain for libel, threats, or obscenity. But an aggrieved husband has First Amendment rights courts are bound to respect at least as much as neo-Nazis and funeral disrupters. Jonathan Yardley, former book critic of The Washington Post, defined the kernel of the issue: “The trouble with free speech is that it insists on living up to its name.”
City of Austin, Texas v. Reagan National Advertising
Even in this digital age, signage remains prominent as a form of speech. In City of Austin, Texas v. Reagan National Advertising, the question before the U.S. Supreme Court was whether a city ordinance forbidding “off-premises” signs was an infringement of the First Amendment.
Protect The First Foundation made the case in an amicus brief that Austin’s prohibition of messages that advertise “a business, person, activity, goods, products, or services not located where the sign was installed” is inherently a regulation of content.
A Supreme Court 5-4 majority today disagreed, narrowing the scope of First Amendment protection for billboards and similar signs. The Court’s reasoning seems straightforward. Writing for the majority, Justice Sonia Sotomayor declared that the distinction in location is “agnostic as to content” and is therefore constitutional.
“Rather, the City’s provisions distinguish based on location: A given sign is treated differently based solely on whether it is located on the same premises as the thing being discussed or not.”
The majority reasons that if a regulation is based on a sufficiently general or broad category, it is not actually content based.
Justice Clarence Thomas, with Justices Gorsuch and Barrett, wrote an eloquent dissent:
“Under Reed, Austin’s off-premises restriction is content based. It discriminates against certain signs based on the message they convey--e.g., whether they promote an on- or off-site event, activity, or service.”
Justice Thomas wrote that the majority ignored the Reed precedent’s “rule for content- based restrictions and replaces it with an incoherent and malleable standard.” Justice Thomas then offered this vivid example:
“Take, for instance, a sign outside a Catholic bookstore. If the sign says, ‘Visit the Holy Land,’ it is likely an off-premises sign because it conveys a message directing people elsewhere (unless the name of the bookstore is ‘Holy Land Books’). But if the sign instead says, ‘Buy More Books,’ it is likely a permissible on-premises sign (unless the sign also contains the address of another bookstore across town). Finally, suppose the sign says, ‘Go to Confession.’ After examining the sign’s message, an official would need to inquire whether a priest ever hears confessions at that location. If one does, the sign could convey a permissible ‘on-premises’ message. If not, the sign conveys an impermissible off-premises message. Because enforcing the sign code in any of these instances ‘requires [Austin] officials to determine whether a sign’ conveys a particular message, the sign code is content based under Reed …
“The majority concedes that ‘[t]he message on the sign matters’ when applying Austin’s sign code. Ante, at 8. That concession should end the inquiry under Reed.”
Justice Thomas found that the majority transforms the clear precedent of “content based regulation” into an “opaque and malleable ‘term of art’ that “turns the concept of content neutrality into a vehicle for the implementation of individual judges’ policy preferences.” He warned the acceptance of Austin’s “content-based distinction” of off-premises speech restriction “plainly lends itself to “suppress[ing] disfavored speech.”
Protect The 1st and the Protect The First Foundation will remain alert to any use of today’s opinion by jurisdictions to invent novel infringements on speech.
As we approach Earth Day, Protect The 1st Senior Policy Advisor and former Congressman Rick Boucher (D-VA) describes the two national treasures at risk in the plan to destroy the sacred lands of Oak Flat. One is the incomparable beauty and wildlife habitat of 2,400 acres of the Tonto National Forest. The other is the constitutional right to the free exercise of religion enjoyed by all Americans.
By all accounts, Mike Pence gave a spirited talk this week at the University of Virginia. He elicited cheers and a little protest. In these days of polarization, the peaceful appearance of a national, partisan figure on a college campus counts as a “win” for free speech.
At another university, this high-profile event might not have happened. When news broke that Pence had been invited to speak to a conservative student group, student Elisabeth Bass of The Cavalier demanded the former vice president be banned from campus as a threat to LGBTQ students. An editorial board piece for that student newspaper likened Pence’s promise to “take a stand for America’s founding” to the white supremacists who rioted in Charlottesville in 2017.
The university administration held firm and rightly allowed the event to go forward. Not incidentally, their decision protected the rights of students to dissent and protest Pence as well. It is UVA’s principled stand for free speech that prompted the Foundation for Individual Rights in Education (FIRE) to give the university a “green light” rating. FIRE’s rating puts the university near the top of schools that notably respect free speech.
Not every university is as firm as UVA. Administrators at other institutions often waver, allowing the silencing of speakers left, right and center.
Despite Pence’s successful appearance, institutions founded on a love of discovery and discourse are still in danger of becoming silos of censorship and shaming. What’s lost is the opportunity for all sides to learn from each other. Let’s hope more students and faculty realize the surefire way to lose a debate is to ban one.
The First Amendment guarantees our free exercise of religion. The Religious Freedom Restoration Act forbids the government from “substantially burdening a person’s exercise of religion.”
So what does a substantial burden look like?
If Congress and the Ninth Circuit Court of Appeals fail to protect the sacred religious lands of the Apache at Oak Flat in the Tonto National Forest in Arizona, a foreign mining company will transform this site into a crater 1.8 miles long and as deep as two Washington Monuments. Try holding a worship service, a coming-of-age ceremony, or a gathering of ceremonial and medicinal herbs at the bottom of such a hole surrounded by almost two miles of empty space.
Here are some great tools for visualizing a substantial burden (hat tip to BJC).
Rick Boucher: Necessary for the Protection of Civil Liberties
On Wednesday, the House Judiciary Committee unanimously advanced the Protect Reporters from Exploitive State Spying, or PRESS Act, sponsored by Rep. Jamie Raskin (D-MD), setting it up for likely passage on the House floor.
Prior versions of this bill, introduced by Protect The 1st senior advisor, Rep. Rick Boucher (D-VA), and then-Rep. Mike Pence (R-IN), passed the House in 2007 and 2009 with more than 400 votes. It has been promoted in years past, not only by the current Committee Chair and Ranking Member, but also by now-Senate Majority Leader Chuck Schumer (D-NY) and Sen. Lindsey Graham (R-SC).
Today’s rare and spirited agreement between committee members of both parties reflects their awareness of a serious concern. In recent years, there have been many media accounts of investigations by overweening prosecutors amounting to fishing expeditions into the notes, files, records, cellphones, laptops, and computers of reporters. Journalists from CNN to Fox News have been targeted under Democratic and Republican administrations. There have been suspicions of political motives in some of these investigations.
The PRESS Act would grant journalists in legal proceedings arising under federal law a privilege to refrain from revealing confidential news sources, with reasonable exclusions.
“The revelations of investigative journalists and the protection of their sources irritate the powerful,” said Rick Boucher, advisor to Protect The 1st who sponsored the bill when he served on the House Judiciary Committee. “But journalistic inquiry is absolutely necessary for citizens to hold our government accountable in the protection of our civil liberties.”
Boucher called on the House to schedule a vote and for past sponsors in the Senate to take up the measure as well.
H.R. 1884 – the Save Oak Flat Act introduced by Rep. Raúl Grijalva of Arizona – now has 100 co-sponsors with Thursday’s addition of Rep. David Price (D-NC).
This bill repeals the authority of the federal government to swap almost 2,500 acres in Arizona’s Tonto National Forest and give it to a foreign mining company. The swap, if allowed to go forward, includes the Oak Flat area that has been used as sacred ceremonial grounds by the Apache for centuries. If that happens, this centerpiece of the Apache religion would be transformed into a copper mine that would leave a hole as long as the Washington Mall and two Washington Monuments deep.
Rep. Grijalva’s bill, which would stop the land swap and the mine, continues to gain support, including the backing of Rep. Tom Cole (R-OK).
On the judicial side, there is also new reason for hope. As the U.S. Court of Appeals for the Ninth Circuit weighs its decision on the fate of these lands, that court must now consider a binding precedent that is only days old. In Ramirez v. Collier, the Supreme Court in an 8-1 opinion protected religious expression from a burden in a context that is far narrower than the one in the Oak Flat case.
Support for the Apache is building because recognition is growing that at Oak Flat the religious rights of all Americans are at stake.
Americans of all races and backgrounds are showing a dramatic shift in their support for school choice. It appears a large majority of Americans have reached a consensus in favor of school choice and policies that favor parental rights. This is a result from a new poll from the American Federation for Children and Invest in Education.
Tommy Schultz, CEO of the American Federation for Children, said “these poll numbers are stunning … a staggering majority.”
“The past two years have exposed to the world what many in the parental choice movement have known for decades,” Schultz said. “No single educational environment is right for every child.”
The survey was conducted by OnMessage, Inc., in telephone interviews between February 14 and February 17, surveying 1,000 voters likely to vote in the upcoming general election.
This poll revealed deeper currents in the school choice debate.
Three-quarters of respondents agreed that “parents should be in charge of decisions regarding their child’s education” and that “it is not fair that only wealthy parents truly get to decide where their child goes to school.” Majorities of Republicans (86 percent), Democrats (65 percent), and independents (74 percent) agreed with these characterizations. Among demographic groups, support for school choice includes 83 percent of Blacks and 77 percent of Hispanics.
The survey asked voters whether they believe that “parents should have the right to remove their children from a failing public school and enroll them in a school that is succeeding academically.” Eighty-three percent agreed, including three-quarters of Democrats. Nearly 90 percent of Black voters agreed, as did 85 percent of Hispanics.
The results of this survey match a poll by RealClear Opinion Research, which found that almost three-quarters of Americans say they support school choice.
No doubt, these results are partly due to some school districts stubbornly clinging to school closures long after it was medically necessary. But such a wide national shift must reflect something broader and deeper: The pandemic and online learning has given parents a good look into not only how children are being taught, but also into what they are being taught – and not taught at all.
(Hat tip to Alexandra DeSanctis)
The Becket Fund just filed a letter in the U.S. Court of Appeals for the Ninth Circuit explaining to its judges how a Supreme Court opinion last week should shape a pending case. Short, terse, straight to the point and with ironclad logic, Becket’s letter gives reason to hope the Ninth Circuit will rule in favor of religious liberty and the Apache people.
The government had argued before the Ninth Circuit that a congressional deal to swap land held as sacred to the Apache religion would somehow not constitute a “substantial burden” on the free exercise of their religion. This claim was maintained despite the deal turning the land over to foreign mining company, which plans to dig for copper and leave a hole as long as the Washington Mall and as deep as two Washington Monuments.
Becket’s letter told the Ninth Circuit that on Thursday, the Supreme Court ruled 8-1 in a case in which condemned prisoner John Henry Ramirez asked that his pastor be able to recite a prayer and touch him when he is to be put to death. What does this have to do with sacred land in Arizona? The Ramirez case upholds religious liberty by recognizing in a framework as narrow as an execution chamber that religion is substantially burdened when government actions make following one’s religious beliefs impossible.
Before, a district court had rejected Ramirez’s Religious Land Use and Institutionalized Persons Act (RLIUPA) claim because, it reasoned, Texas’s refusal to grant his request did not substantially burden his religious exercise. “But the Supreme Court reversed and ruled for the prisoner,” Becket wrote, “noting the substantial burden was so obvious that Texas had failed to even ‘dispute’ it before the Court.”
The government argued in the Apache case that no substantial burden exists if the government is “merely conducting its own affairs.” Yet the Supreme Court found a substantial burden on Ramirez’s free exercise of religion even within the strict execution protocol of the State of Texas, surely a good example of a state conducting its own affairs.
Becket writes that “the government hasn’t just made plaintiffs’ religious exercise more costly via penalties or denial of benefits. Rather, it has taken action that will preclude the exercise altogether – handing Oak Flat over to be physically destroyed, thus rendering the plaintiffs’ continued religious exercise there physically and objectively impossible.”
“That is a substantial burden.”
It is also a binding precedent that should spell good news for the Apache.
Houston Community College System v. WilsoN
The U.S. Supreme Court today unanimously held that an elected body censuring one of its members is not a violation of the First Amendment. In so doing, the Court correctly protected speech and political expression from heavy-handed judicial regulation.
The Court took up this case because a split panel of the U.S. Court of Appeals for the Fifth Circuit oddly concluded that a member of an elected board censured by his colleagues has a viable First Amendment claim.
David Wilson, one of nine trustees of the board of the Houston Community College (HCC) System, was publicly censured after what the Court described as years of escalating hostility that included lawsuits, a private investigator, robocalls and accusations by Wilson of ethical violations.
The HCC had enough and censured Wilson via a resolution calling his conduct “not only inappropriate, but reprehensible,” and imposed penalties rendering him ineligible for officer positions on the board and pulling his expense account. While the Fifth Circuit ultimately concluded that the penalties were not a problem, it was the criticism it bizarrely thought went too far and encroached upon Wilson’s First Amendment rights.
Wilson had tried to make a distinction between a mere reprimand, which does not impair speech, with a disciplinary censure, which he claimed did materially impair his freedom of speech. Justice Neil Gorsuch, writing for a unanimous opinion, found this was a distinction the justices “find hard to see.”
Justice Gorsuch noted that since colonial times, assemblies and elected bodies have been free to censure their members. In 1833, Justice Joseph Story observed that even the “humblest assembly” in the United States enjoyed the power to prescribe rules for its own proceedings.
Justice Gorsuch wrote: “Elected representatives are expected to shoulder a degree of criticism about their public service from their constituents and their peers – and to continue exercising their free speech rights when the criticism comes.” In other words, elected officials can’t claim to be free-speech snowflakes who can dish it out but not take it. As Justice Gorsuch aptly pointed out, the act of censuring David Wilson was, itself, speech.
Justice Gorsuch noted that this is a narrow ruling, leaving room for First Amendment considerations in other contexts. “When the government interacts with private individuals as sovereign, employer, educator, or licensor, its threat of censure could raise First Amendment questions. But those questions are not this one.”
Had the Court not corrected the Fifth Circuit, there would have been no end of litigation by aggrieved politicians. Judge Edith Jones, who dissented from the Fifth Circuit’s decision, had warned that the panel’s ruling “threatens to destabilize legislative debate, and invites federal courts to adjudicate ‘free speech’ claims for which there are no manageable legal standards.”
Now, as before, the best remedy to speech one finds objectionable is more speech, which no doubt David Wilson will provide and, in all likelihood, receive more of in return as well.
In today’s confirmation hearing for Judge Ketanji Brown Jackson, Sen. Mike Lee (R-UT) asked the Supreme Court nominee about her stance on viewpoint discrimination by online platforms. He asked Judge Jackson about Section 230 of the Communications Decency Act, which grants broad immunity to social media platforms for posts made by their users.
In so doing, Sen. Lee touched on the hot topic of the removal of posts and demonetization of content creators (seen most recently in the Twitter/ Babylon Bee controversy).
Sen. Lee asked: “Wouldn’t it be within Congress’s authority to condition a receipt and an availability of Section 230 immunity on those online interactive service providers operating as a public forum, not discriminating on the basis of viewpoint?” Plainly put, Sen. Lee was asking if Congress could put conditions for viewpoint protection in exchange for Section 230 immunity.
Though Judge Jackson’s answer was non-committal, the question perhaps says a lot about the state of mind of Senate Republicans. Instead of seeking to try to regulate the First Amendment rights of social media companies – likely to be struck down in court – there is a growing recognition that a workable balance might be reached in continuing Section 230’s benefits while protecting robust speech online from ham-handed “content moderation.”
Perhaps this is a sign that more senators are ready to sign on to the Platform Accountability and Consumer Transparency Act (PACT Act), co-sponsored by Sens. Brian Schatz (D-HI) and John Thune (R-SD).
The PACT Act would require social media companies that wish to continue to enjoy Section 230’s immunity to give social media posters more transparency about content decisions, and an appeals process for censored content and individuals. It is a way to address free speech on the large sites that dominate the public discussion while respecting the First Amendment.
The New York Times ran an even-handed editorial denouncing threats to free speech from progressive cancel culture and conservative attempts to legislate speech in the classroom. For a surprising number of commentators, one of America’s largest newspapers taking a moderate stance in favor of free speech was a red flag. Critics from both the left and right denounced the Gray Lady for “both-sidesism,” highlighting the very social fissures the editorial describes.
Most notable are the results of recent poll commissioned by The Times Opinion and Siena College. It found:
The Times article is long, detailed, and worth reading. It is balanced and incisive, though with many debatable points. Overall, it does a good job of summing up that this crisis is largely the result of America’s culture and ideological wars, not the kind of government censorship one finds in Putin’s Russia.
The Times observes that “the old lesson of ‘think before you speak’ has given way to the new lesson of ‘speak at your peril.’” We are reminded that the letter of the First Amendment, which forbids official censorship, necessarily relies on a widespread spirit of tolerance. And free speech is further encouraged when we have curiosity about issues in which “the other side” might actually know something we don’t.
Proving Oscar Wilde’s dictum that irony is wasted on the stupid, more than 100 Yale Law students shouted, cursed, physically threatened, clapped and pounded on walls to silence a panel on civil liberties and free speech.
The March 10 event was a panel hosted by the Yale Federalist Society to bring together Monica Miller of the progressive American Humanist Association and Kristen Waggoner of the Alliance Defending Freedom (ADF). This progressive atheist and conservative Christian were at Yale to discuss Uzuegbunam v. Preczewski, a case in which the U.S. Supreme Court upheld 8-1 the ability of a Christian student to vindicate in federal court his right to proselytize on campus, even if he sought only nominal damages.
Had the Yale students listened, they would have heard Miller saying that without the Uzuegbunam ruling, her organization would not be able to protect the speech rights of LGBT students.
Such distinctions were lost in the violent din. One protestor told a member of the Federalist Society that she would “literally fight you, bitch.” Student members of the Federalist Society were jostled as they attempted to leave the room. They were rescued by police.
It is past time for universities to do more than send an administrator in to such events to futilely plead for free speech. Any person who engaged in such behavior while at work would be fired. Any lawyer who brought these tactics to a court room would be escorted by the bailiff to jail. Given that Yale Law produces presidents, senators, justices, and judges, it is important to all Americans that it educate our future leaders to not threaten speakers.
An expulsion or two would probably work wonders.
Protect the First Foundation Files Amicus Brief Asking the Supreme Court to Uphold Rights of Healthcare Workers Fired for Religious Objections to Vaccine
Protect the First Foundation today asked the Supreme Court to hear the case of healthcare workers in New York State who were fired because of a religious objection to the coronavirus vaccine.
Some practicing healthcare workers object to receiving COVID-19 vaccines because of the use of fetal cells in the vaccines’ development process (though no such cells appear in the mRNA vaccines). Most states accommodate this small minority of Americans who have such religious objections to receiving the coronavirus vaccine.
New York State, however, is taking a different approach. When it issued a mandate for all healthcare workers to be vaccinated, the state broadened exemptions for those with medical concerns. But the state denied any accommodation for those with religious objections to the vaccine. It fired healthcare workers with such objections and cut them off from access to unemployment benefits.
The Case and the Brief
New York argues that the medical exemption is “not comparable” to the religious exemption because it “advances rather than undermines” the state’s interest in “protect[ing] healthcare workers themselves.” The Second Circuit, in upholding New York’s refusal to allow a religious exemption, held that the medical exemption did not trigger strict scrutiny because vaccinating “a healthcare employee who is known or expected to be injured by the vaccine would harm her health and make it less likely she could work.”
The Protect the First Foundation countered:
“But that reasoning overlooks the fact that terminating religious objectors also harms the state’s interest in preventing staffing shortages and keeping healthcare workers on the front lines. More fundamentally, it ignores that the medical exemption undermines the government’s core asserted interest in ‘prevent[ing] the spread of COVID-19 in healthcare facilities among staff, patients, and residents.’”
The brief noted that as far back as Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah in 1993, the Supreme Court recognized that laws discriminate against religious practice when they “fail to prohibit nonreligious conduct that endangers [the government asserted] interests in a similar or greater degree” to religious conduct.
The core issue in this case traces its root to a 1990 Supreme Court decision in Employment Division v. Smith. Under that decision, and later cases, laws that incidentally burden religion are not subject to strict scrutiny—the standard under which laws burdening other constitutional rights are reviewed—if they are neutral and generally applicable. The Supreme Court has made clear that laws are not generally applicable when they forbid religious conduct while allowing secular conduct that undermines the government’s interests in a similar way.
Protect the First Foundation observed:
“As the Second Circuit recognized, allowing unvaccinated workers invoking the medical exemption to remain on the front lines presents ‘comparable risks of both contracting and spreading COVID-19,’ regardless of ‘the reason that the employee is unvaccinated’ … What’s more, firing healthcare workers with religious objections undercuts the state’s asserted interest in preventing staffing shortages.”
Protect The 1st will report on further developments if the Supreme Court adopts this case.
Many conservatives and moderates alike are critical of the direction academia has taken in recent years.
At Skidmore College, one can take “The Sociology of Miley Cyrus: Race, Class, Gender, and the Media.” At Oberlin, one can study “How to Win a Beauty Pageant,” (not actually a how-to, but an “analysis of the interplay of race, gender, class, sexuality and nation”). And at Occidental College, one can take a course that delves into "phallogocentrism."
While studies of the U.S. Constitution and what used to be called “civics” languish, universities and colleges are elevating courses once considered fringe electives and bringing closer to the center of their liberal arts programs. Many observers take a skeptical view of such gender studies courses that analyze society through “gender hierarchies” and gender inequalities in ways that seem increasingly rigid, ideological, and abstruse.
Whatever one’s view of these courses and the philosophies they represent, however, Protect The 1st recommends that politicians resist the impulse to restrict academic freedom at public institutions with broad-brush directives. The Wyoming state Senate helped crystalize this question by recently passing a bill that stipulates:
“As a condition of these appropriations, the University of Wyoming shall not expend any general funds, federal funds or other funds under its control for any gender studies courses, academic programs, co-curricular programs or extracurricular programs.”
Wyoming senators are trying to perform the delicate task of challenging academia’s prevailing culture with a sledgehammer where a scalpel is required. Such a heavy-handed approach is sure to backfire, spurring a rebellion by professors angered by an encroachment on their freedom to teach. State legislatures and the taxpayers they represent certainly have a right to influence the content of state-supported teaching. But when the directives veer into viewpoint discrimination and First Amendment rights, the result will only be fruitless litigation.
This point is clear in the Wyoming bill’s restrictions on student organizations, which run afoul of Rosenberger v. Rector and Visitors of the University of Virginia. In that opinion, the Supreme Court held that it is unconstitutional to deny funding to Christian student organizations on the basis of viewpoint. The Wyoming law is sure to be slapped down under Rosenberger because it effectively bans support for student organizations and speakers with particular viewpoints on gender-related issues.
State legislators have every right to air this debate. Universities and colleges should not be immune to questioning. Ultimately, however, there is only one effective route forward for better curricula – long, arduous, criticism, debate, and reform within the academy.