Last summer, Americans angered by the murder of George Floyd passionately but peacefully protested in Minneapolis, Portland and other cities. Their protests were sometimes followed by rioting, looting and the burning down of businesses.
 
How do we treat peaceful protesters when violence is in the vicinity? A measure recently signed into law in Florida would have criminalized attendance at a rally where some violence occurs, even if the individuals charged with crimes committed no violent acts. “This targeting of protesters is shameful and directly contradicts our Constitution,” the NAACP Legal Defense and Educational Fund wrote in a filing with the American Civil Liberties Union and other groups.
 
A federal judge recently agreed, bringing clarity to this issue when he blocked the implementation of that law. U.S. District Judge Mark Walker enjoined the Florida statute. What he said should be guidance to those on all sides who want to criminalize speech in the form of peaceful protest:
 
If this court does not enjoin the statute's enforcement, the lawless actions of a few rogue individuals could effectively criminalize the protected speech of hundreds, if not thousands, of law-abiding Floridians.

Because it is unclear whether a person must share an intent to do violence and because it is unclear what it means to participate, the statute can plausibly be read to criminalize continuing to protest after violence occurs, even if the protestors are not involved in, and do not support, the violence. The statute can also be read to criminalize other expressive activity, like remaining at the scene of a protest turned violent to film the police reaction.
 
Those who engage in violence must be prosecuted. But laws should focus on those who commit criminal acts, not those who exercise their right to peaceably assemble and to petition the government for a redress of grievances.

Next week the U.S. Supreme Court will decide whether to hear a First Amendment case brought by the American Civil Liberties Union about the withholding of opinions issued by the secret Foreign Intelligence Surveillance Court (FISC).
 
ACLU and its supporters want the Court to decide whether the FISC has jurisdiction to deny that the First Amendment provides a qualified right of access to the court’s significant opinions (subject to redactions); whether the Foreign Intelligence Surveillance Court of Review (FISCR) has jurisdiction to consider an appeal of the denial of such a motion; and whether the First Amendment provides a qualified right of public access to the FISC’s significant opinions.
 
It’s the first time the nation’s high court has been asked to resolve whether the FISC must make its secret opinions public. While many view this complex case from the stance of government surveillance policy and privacy concerns, the vitality of the First Amendment is at stake as well.
 
The ACLU’s petition is the culmination of a years-long, multi-tiered, labyrinthian dispute with the FISC dating back to 2013.
 
ACLU states it “has filed three motions in the FISC asking it to release secret opinions authorizing the surveillance of Americans. The public has a right to see the legal decisions addressing novel surveillance programs that affect our privacy and free speech rights — but many of the FISC’s opinions remain closely guarded secrets.”
 
George Will put it this way: “What is disturbingly anomalous is a court whose jurisdiction implicates fundamental rights, but whose reasoning is made public only at its discretion.”
 
There’s further reason for concern: Other FISC opinions that have been made public have revealed major legal violations in the surveillance of Americans by the government.
 
The ACLU maintains that under separation-of-powers principles, courts – not the executive branch – should decide whether judicial opinions ought to be made public. Voluntary review by the executive branch is not a substitute for judicial review, especially since the executive branch’s control of the FISC opinion declassification process makes it all too easy to release opinions slowly and opportunistically.
 
The Justice Department, headed by Attorney General Merrick Garland, argues that the First Amendment doesn’t extend to the public’s right of access to secret decisions issued by a federal court.
 
As a federal appeals court judge six months before he was nominated to be attorney general, Garland stated that court decisions are public documents, and that judicial decisions have been held open for public inspection since at least the time of Edward III. Judge Garland wrote of the right of access to judicial records:
 
“At bottom, it reflects the antipathy of a democratic country to the notion of ‘secret law,’ inaccessible to those who are governed by that law.”
 
Judge Garland’s statement is in harmony with an amicus brief filed by the civil liberties organization, The Project for Privacy and Surveillance Accountability: “This case raises a significant question: How can the American people learn of, debate, and cast informed votes relating to the Executive Branch’s surveillance activities performed in their names … if the government refuses to disclose that information?”
 
Protect The 1st hopes the Court will bear in mind the words of one of its own — Associate Justice Elena Kagan, who said, "The Supreme Court … has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the Court must also recognize the limits on itself and respect the choices made by the American people.”

Protect The First Foundation filed an amicus brief Wednesday in City of Austin, Texas, v. Reagan National Advertising, before the Supreme Court, showing that a city regulation forbidding “off-premise signs” violates the First Amendment.
 
Austin city code prohibits signs from displaying messages that advertise “a business, person, activity, goods, products, or services not located where the sign was installed.” A sign cannot even direct people to another location. Any such sign is designated “off-premise” and is forbidden. Although there is an exception for older, grandfathered signs, that protection is lost if the signs are changed or improved.
 
“Austin’s sign code is inherently about the regulation of content,” said Gene Schaerr, Protect The 1st general counsel. “For that reason alone, it should be subject to – and fail – the strict scrutiny courts apply to First Amendment cases.”
 
PT1 argues that the regulation restricts speech, including subjects that do not lend themselves to a premise-specific communication, whether it’s “Vote,” “Get Vaxxed,” or “Jesus Saves.”
 
“Regulations that turn on the content of speech,” the PT1 brief declares, “are particularly troubling and prone to abuse, even where they are not overtly based on the viewpoint of the restricted speech. Often, a content restriction is merely a proxy for viewpoint discrimination. Other times it involves discrimination against topics, types of speech, or speakers. All of those forms of governmental discrimination offend the First Amendment.”
 
And, PT1 argues, because Austin has not offered any reason why signs bearing off-premise content pose a greater threat to aesthetics and traffic safety than do signs bearing on-premise content, the city cannot justify its speech code. The ordinance is “underinclusive,” and thus unconstitutional.

​In 2018, the Becket Fund for Religious Liberty launched a podcast called “Stream of Conscience” to shed light on religious liberty in America. The podcast presents important cases in an engaging, conversational format.
 
Season Two kicked off this month. Host Katie Geary dives deeper the far-reaching implications of the rights of religion, as seen through the lens of two major elements of the Constitution: The Establishment and Free Exercise clauses. Other fundamental freedoms come into play as well, showing how freedom of speech and the right to property are deeply entwined with religious liberty.
 
In the first episode, Geary and Becket Executive Director Montse Alvarado discuss the Religious Freedom Restoration Act, which was passed in 1993 with overwhelming bipartisan support that’s rarely, if ever, seen today. Episode two takes on the idea of separation of church and state – which, contrary to public opinion, is not part of the Establishment Clause of the Constitution.

Protect The 1st filed a brief today in Ramirez v. Collier, a case the Supreme Court will hear this November. Its brief urges the Justices to recognize a robust interpretation of a law Congress designed—in the Court’s own words—to provide “expansive protection of religious liberty.”
 
In this case, John H. Ramirez, a convicted murderer in Texas, has requested that his pastor be allowed to lay hands on him and pray while he is executed by lethal injection. The laying on of hands is an ancient tradition, one that is held to transfer the power of absolution and benediction from God. Texas rejected his request because, in its words, a law protecting religious observances for the incarcerated does not mean that the state “must accede to his every religious demand.”
 
Ramirez counters that Texas would have his pastor “stand in his little corner of the room like a potted plant” and that “if he even breathes through his mouth, the warden may declare that” the pastor is “trying to utter prohibited words of prayer.”
 
The greater significance of this case revolves around the Religious Land Use and Institutionalized Persons Act (RLUIPA), a statute that defines religious exercise “capaciously,” backed by many court interpretations favoring broad religious protections.
 
“Some lower courts, however, have failed to understand the clear message from Congress that we should give broad leeway when it comes to the free exercise of religion by the incarcerated,” said Gene Schaerr, Protect The 1st general counsel. “They’ve seized on one undefined term in the statute, ‘substantial burden,’ to find ways to undermine the intent of the law.
 
“There is more at stake in Ramirez than just the issue at hand,” Schaerr said. “The Court has a rare opportunity to make it clear to lower courts that they should respect the expansive and generous interpretation of RLUIPA that Congress intended for all incarcerated people.
 
“The Court should recognize that government can substantially burden religion in varied and ingenious ways. It should go without saying that making it impossible to observe one’s faith at the moment one is killed by the state is as substantial a burden as they come.”
 
Schaerr pointed to reasons for optimism about the outcome of this case.
 
In February, the Court declined to remove an injunction halting the execution of an Alabama man who was denied the opportunity to have his pastor at his side in the execution chamber. In that case, Justice Elena Kagan filed a concurring opinion, joined by Justice Stephen Breyer, Justice Sonia Sotomayor, and Justice Amy Coney Barrett explaining that state action barring religious exercise must pass heightened judicial scrutiny. PT1st’s amicus brief also notes that in 2014 then-Judge Neil Gorsuch wrote that when the government prevents the plaintiff from participating in [religious] activity, giving the plaintiff no “degree of choice in the matter,” then that “easily” imposes a substantial burden on religious exercise.

Death by taxes? Not today: A Cincinnati tax that targeted two billboard companies was ruled unconstitutional by the Ohio Supreme Court.
 
The court permanently enjoined the city of Cincinnati last week from enforcing an excise tax on billboard advertising that it imposed on two companies in 2018. The billboard operators, Lamar Advantage GP Company and Norton Outdoor Advertising, successfully argued that the tax violates their rights to freedom of speech and a free press under the First Amendment.
 
The struggle between commercial printed media and taxation in this country hails back to the reign of King George III. The Stamp Act of 1765 sought to replenish the British treasury after the empire’s victory over France in the Seven Years’ War. The act taxed newspapers, legal documents and printed materials – from wills to deeds, pamphlets, newspapers and posters.
 
The Stamp Act proved to be an early failure. Taxes levied under the act pushed American colonists to the point of rebellion.
 
A 21st century free speech crisis would have occurred in Cincinnati had the state supreme court not ruled the discriminatory tax unconstitutional. The city enacted the billboard-tax ordinance to raise revenue that would help address a $2.5 million budget deficit and claimed that the tax wasn’t meant to regulate or mitigate the effects of billboards.
 
Lamar and Norton disagreed and filed suit in 2018, citing First Amendment violations.
The Ohio Supreme Court ruled in favor of the plaintiffs, concluding that, “The basic premise of the First Amendment is that all present instruments of communication, as well as others that inventive genius may bring into being, shall be free from governmental censorship or prohibition.”
 
Writing for the Supreme Court majority, Justice Sharon L. Kennedy stated that regardless of whether the city intended to censor the billboard messages or not, “a selective tax creates the intolerable potential of self-censorship by the press and abuse by governmental actors aimed to suppress, compel, or punish speech.”
 
She added: “That the tax involves billboards rather than the institutional press is of no consequence.” The billboard companies’ rights as speakers and publishers are protected by the same free speech and press rights as other publishers, the court held. 
 
In an interesting side note, the court ruling included an observation that the city’s billboard tax resembles the type of taxes levied under the Stamp Act of 1765. The  opinion included this nugget: “One scholar has explained, it was “‘quite likely that [the tax on] paper was more emphatically an immediate cause for the outbreak of the spirit of revolt than the insipid [tea] of which so much has been written.’”
 
The Ohio Supreme Court’s ruling itself is a strong brew.
 
Recent lines of thinking hold that non-profit groups, social media or radio shows might benefit from government regulation of content. The Ohio Supreme Court reminds us that regulation of all forms of communication “that inventive genius may bring into being” is squarely at odds with the First Amendment.

​Erik Jaffe, Protect The 1st Policy Director, joins a panel discussion at the CATO Institute looking ahead on what to expect in the Supreme Court’s October term. Among the topics: the case of Texas death row inmate John Ramirez, whose scheduled execution was halted by the U.S. Supreme Court over possible violations of his First Amendment right to the free exercise of religion.

​The case of high school football coach Joe Kennedy is like one of those wild games with one turnover after another. For the second time, the U.S. Supreme Court will decide whether to hear his case.
 
A high school coach at Bremerton School District in Washington State, Kennedy had the habit of taking a knee on the 50-yard line of the field after every game. He did so not to make a political statement, but to engage in a few seconds of silent prayer.
 
Kennedy was fired in 2015 for repeatedly violating an order by the school not to pray. This case came to be seen as the razor’s edge of legal theory to protect the First Amendment right to free exercise of religion. Prior Court opinions forbid organized prayer. But Kennedy prayed by himself outdoors, after his games.
 
This case bounced around the courts for years. The firing of Kennedy was upheld by the Ninth Circuit Court of Appeals. Kennedy’s first petition before the Supreme Court was denied in 2019. Justice Samuel Alito noted that “denial of certiorari does not signify that the Court necessarily agrees with the decision.” He also wrote that “the Ninth Circuit’s understanding of the free speech rights of public school teachers is troubling and may justify review in the future.”
 
Kennedy’s new petition will be reviewed by the high Court, this time with a new Justice – Amy Coney Barrett – who has been notably interested in the free exercise of religion throughout her career.

On Friday, Protect The First Foundation filed a brief in Carson v. Makin, a case asking whether private schools can be denied access to public benefits because they will put them to religious use.
 
The case concerns several parents who successfully petitioned the Supreme Court to hear their challenge to Maine’s refusal to make its tuition assistance program available for religious schools. PT1st’s amicus brief provides the court with many reasons to reverse an opinion from the First Circuit Court of Appeals holding that Maine’s scheme passed constitutional muster.
 
As Protect The 1st reported in July, Maine is adopting a very eccentric – and discriminatory – policy toward religious schools. It recognizes that religious schools – be they Catholic, generically “Christian,” Jewish Orthodox, or Muslim – are eligible for student-aid programs regardless of that school’s religious status. The Supreme Court made clear last year in Espinoza v. Montana Department of Revenue that at least that much was constitutionally required. Maine nevertheless denied its tuition assistance program because these schools dare to include religious instruction in their school day.
 
In short, Maine says it is okay for a nominally “Catholic” school to receive funding as long as it doesn’t set aside time during the school day for Catholic activities, such as the Mass or Bible discussion.
 
In this way, Maine forbids parents from accessing publicly available aid to send their children to religious schools. Maine restricts these funds despite religious schools satisfying Maine’s educational requirements in important subjects. Maine’s policy also ignores many parents’ religious obligation to provide their children with a religious education.
 
That parents in many religions have such an obligation is well documented. The Vatican Council II charges parents with “the duty of entrusting their children to Catholic schools wherever and whenever it is possible.” Muslims leaders say Muslim schools are an essential way to preserve Muslim identity and beliefs and provide places where Islamic attire can be worn without pressure toward un-Islamic behavior. For Jewish schoolchildren, it would be impossible in public schools to participate in daily prayers, or eat in outdoor booths during the holiday of Sukkot.
 
These religious schools provide spaces for passing on beliefs and culture while also meeting high standards in teaching math, science, history, and English. As the PT1st brief showed:
 
Families have a free exercise right to educate their children in religious schools quite apart from their right not to be discriminated against on the basis of religious status. And excluding them from a publicly available benefits program—to which they have contributed tax dollars and which would be available to them but for their desire to educate their children at a school that teaches about their faith—places a substantial burden on that right.
 
What is the nature of that burden? It’s a matter of paying a tax that funds a benefit that everyone is eligible to receive except students at religious schools.
 
[U]nder Maine’s statutory scheme, that burden is effectively increased by nearly 100% for parents who prefer a religious education for their children.
 
PT1st’s brief demonstrates that Maine’s laws are burdensome and anything but neutral with respect to religion. We will continue to monitor this case as the Justices hear oral argument later this term. We hope the Court will take to heart the points raised in our brief and hold that the right recognized in Espinoza extends to religious schools that act religiously as well as just those that have a religious name.

​When it comes to free expression, concern is often raised about policies and actions that “chill” speech. But what about openly expressed religious hatred and official glossing over threats of genocide? The word “chill” doesn’t quite cover it. Most incredible of all, a legal filing alleges that such grotesque practices took place at one of the world’s pre-eminent institutions of higher learning, Stanford University.
 
Two psychotherapists filed a complaint in June with state and federal civil rights agencies against the university. Ronald Albucher and Sheila Levin write in The Stanford Daily that when they participated in Stanford’s Diversity, Equity and Inclusion (DEI) initiative, they were subjected to anti-Semitic abuse.
 
One DEI meeting they participated in was Zoom-bombed with swastikas and racial slurs. DEI leaders refused to discuss the swastikas, “stating that they did not want anti-Semitism to dominate the discussion, since Jews are wealthy business owners.”
 
When swastikas were discovered within the university’s Memorial Church, DEI facilitators refused to discuss it. Albucher and Levin write that one “DEI leader responded by calling out Jewish ‘immense power and privilege’” and told the two psychologists that they are part “’of the systemic racism and oppression that takes place in this country.’”
 
One of the psychologists, the immigrant daughter of two World War II survivors, wrote that “hearing the very tropes the Nazis used to justify Jewish genocide used in a DEI meeting was shocking and appalling.” After failing to obtain help from the leaders of the program, then the university, they sought assistance from the Louis D. Brandeis Center for Human Rights Under Law, a legal advocacy group in Washington, D.C.
 
“If we stay silent during a DEI discussion where Hitler’s words are repurposed, we are complicit in bigotry and stereotyping that threatens all minorities,” they write. Protecting members of a university community, including American Jews and Israeli students, from bigotry is fundamental to free expression and academic inquiry. If a great university wants to remain great, it must do no less.
 
And if Stanford won’t change? Stanford University enjoys a First Amendment right to harbor repugnant speech. Freedom of association recognizes the right of alumni and philanthropists not to contribute to such an institution.

​Jason Kilborn, a law professor at the University of Illinois at Chicago, learned the hard way about how easy it is for the free exercise of speech to lead to a witch hunt on today’s campus. Kilborn posed a question on a Civil Procedure II final exam – which had been used for years – based on an employment discrimination scenario that referenced redacted racial slurs.
 
This should have been well within the bounds of academic freedom. And the exam question made sense, given the use of employment discrimination law. “These hypotheticals really force these students – future lawyers – to be prepared for the messy reality they’ll be faced with in the outside word,” he told the Foundation for Individual Rights in Education (FIRE). Nevertheless, Kilborn became a target of an investigation and a campaign to ruin his career and reputation.
 
On Tuesday, FIRE released a disturbing report on the damage being done to careers and lives by these kinds of desultory smear campaigns against scholars. Examining a database of over 400 cases since 2015, FIRE reports:

• Such attacks on scholars in higher education quadrupled from 2015 to 2020.
• Some 74 percent of smear campaigns result in an investigation or another punishment.
• One-quarter of such attacks result in scholars losing their jobs.
• The top targets are in liberal arts – law, political science, English, history and philosophy.

 
While many assume that such attacks come from the political left, FIRE reports that 34 percent of the attacks came from the political right. This fits with a CATO Institute report that 62 percent of Americans, including a majority of moderates and liberals, report that they are afraid to speak their mind about politics.
 
An incisive piece by Anne Applebaum in Atlantic also appeared yesterday that described the human costs of these attacks on free speech. Some excerpts from her essay:
 
Here is the first thing that happens once you have been accused of breaking a social code, when you find yourself at the center of a social-media storm because of something you said or purportedly said. The phone stops ringing. People stop talking to you. You become toxic …
 
For many, intellectual and professional life grind to a halt. “I was doing the best work in my life when I heard of this investigation happening,” one academic told me. “It all stopped. I have not written another paper since …
 
[I]solation plus public shaming plus loss of income are severe sanctions for adults, with long-term personal and psychological repercussions – especially because the “sentences” in these cases are of indeterminate length.
 
Apologies, Applebaum writes, “will be parsed, examined for ‘sincerity’ – and then rejected.” She compares the speech cancellation process to the authoritarian mechanisms of the Argentine junta and Franco’s Spain, as well as to the ‘troikas’ of Stalin’s Soviet Union and Mao’s Cultural Revolution.
 
Not surprisingly, Applebaum reports that many victims of these campaigns contemplate suicide. More than a few have killed themselves.
 
This illiberal attack on free speech is finally generating organized opposition. FIRE announced it is launching a Faculty Legal Defense Fund with the support of the Stanton Foundation, created by Dr. Frank Stanton, long-time president of CBS and initiator of the first televised presidential debate – the famous “Kennedy-Nixon” debates.
 
One of the beneficiaries of FIRE’s defense fund is Jason Kilborn, who kept his job after it came to his defense. Another group that defends scholars is the Academic Freedom Alliance.
 
Protect The 1st is happy to join the league of defenders of academic freedom and campus speech from authoritarian shamers, cancellers and trolls of the right and left.

The Becket law firm combined data from the National Congregations study of churches, synagogues and mosques at Duke University with an earlier study from the University of Pennsylvania on congregations as service providers.
 
They show that 80 percent of congregations provide social services to their communities. As important as government safety net programs are, without the continuous care from religious organizations and houses of worship, millions of people would fall through the cracks.
 
Religious congregations are there when a hurricane sweeps through or an earthquake destroys homes and jobs. They cook meals and man the food lines for the homeless and the hungry. They run programs that advance health and promote the welfare of the young.
 
When these services are provided, houses of worship often provide them within their own walls. Churches, synagogues, and mosques are not just places where worship services are held. They are places where people in need are served.
 
This is one reason why Protect The 1st is adamant about protecting the free exercise of religion clause in the First Amendment. Protecting the right to worship is also protecting human welfare.

Charity is not just a side gig for religious organizations. In many instances, it is the practice of religion itself.
 
This principle came into stark relief when a July 28 executive order issued by Texas Governor Greg Abbott sparked a legal battle with the federal government, catching a Catholic charity in the middle. At stake is the ability of religious organizations to practice faith in charitable action – while executing a mission that ought to be of great value to the State of Texas.
 
Gov. Abbott issued his order after reports about a maskless migrant family at a restaurant in La Joya, Texas. The family was supposed to be under quarantine at a nearby hotel after some of its members tested positive for COVID-19. The governor echoed statewide concerns about the influx of migrants and a spike in COVID-19 cases, citing a 900 percent increase in COVID-positive migrants detained by federal officials in the Rio Grande Valley. 
 
The order prohibits group vehicle transport of migrants by private entities, backed by a threat to confiscate vehicles. The order would shut down the work of Catholic Charities of the Rio Grande Valley (CCRGV), which provides families, pregnant mothers, single women and others with food, medical care and shelter from the hot Texas sun. Under the order, CCRGV could not shuttle migrants from its Humanitarian Respite Center, where migrants are legally dropped off by Customs and Border Patrol, to appropriate destinations.
 
Those who test negative are either admitted to the shelter or shuttled by the charity to other destinations while they await their hearings. Those who test positive are shuttled to one of several hotels contracted by Catholic Charities (or other sites identified by government officials), where they quarantine along with their families.
 
Two days after Gov. Abbott signed his executive order, the Department of Justice filed suit to block it and issued an emergency request to stop its enforcement. The federal government argues the order would jeopardize the health and safety of noncitizens in federal government custody – along with federal law enforcement personnel, their families and others in Texas border communities.
 
CCRGV contends that the order threatens daily operations and wrongfully endangers its religious mission to provide migrants with food, water, medical care, and a place to briefly rest. 

Sister Norma Pimentel: “Serving those in need, and especially those we serve through the Humanitarian Respite Center, is part of our sincere religious exercise as Catholics.”

The Becket law firm filed an amicus brief on behalf of CCRGV, supporting the Justice Department’s legal challenge and arguing that the order harms immigrants, increases the community spread of COVID-19, and restricts religious exercise protected under the First Amendment.
 
“Immigration, border security and COVID-19 are hard issues without easy answers. But shutting down this ministry will make it harder, not easier to deal with those problems,” said Becket attorney Lori Windham. 
 
The U.S. District Court for the Western District of Texas in El Paso issued a temporary restraining order on August 13, allowing Catholic Charities to continue its mission. Sister Norma Pimentel, who leads the nonprofit, said she remains deeply concerned that the governor’s order will worsen the COVID-19 crisis and have a negative impact on migrant families and others in the region.
 
“Serving those in need, and especially those we serve through the Humanitarian Respite Center, is part of our sincere religious exercise as Catholics,” Pimentel said.
 
The court must now decide whether to issue an injunction against the executive order while the Justice Department’s case against the State of Texas is pending. 
 
Protect The 1st supports the right of CCRGV to express its faith through good works. We applaud Becket’s work on the nonprofit’s behalf. Governor Abbott is right to be concerned about the rapid increase in COVID-19 cases, but his good intentions inadvertently compromise the charitable practice of religion and could have a boomerang effect on preventing the spread of infection.

​The Department of Justice recently made a very public edit in a brief before a federal court in Oregon that weakened its standard for the protection of religious freedom.
 
Government lawyers had previously declared to the court that it would “vigorously” defend religious freedom. A day after its filing, Department of Justice lawyers submitted a revised brief that omitted “vigorously” and promised instead to be “adequate” in protecting religious freedom.
 
Ken Marcus, founder and chairman of The Louis D. Brandeis Center for Human Rights Under Law, writes about this Oregon case regarding an attempt to remove the exemption that religious colleges enjoy in federal regulation.

​Families of all faiths have long had good reason to think twice about sending their sons and daughters to colleges and universities with a history of discrimination against religious organizations and their student leaders.
 
Ongoing reports reveal a nationwide trend of higher-ed administrations curbing student religious organizations’ free speech and free association on campus. Consider the case of InterVarsity Graduate Christian Fellowship, an organization with a 25-year history at the University of Iowa.
 
In 2018, the university deregistered the group – along with others including the Sikh Awareness Club, the Chinese Student Christian Fellowship, the Imam Mahdi Organization, Geneva Campus Ministry, and the Latter-day Saints Student Association – for asking that their group leaders share their faith and beliefs. At the same time, the Hawkeyes turned a blind eye to dozens of other student groups that screen their leaders for shared beliefs on issues like gender, race, and sexual orientation.
 
InterVarsity sued, claiming the administration had no right to bar student religious groups from choosing leaders who represent their faith teachings. The suit further alleged the university only punished disfavored religious groups for screening their leaders for mission alignment.
 
The Becket law firm represented InterVarsity (its second such case against the university and third overall) and took the Hawkeye administration to task for its double vision.
 
“No organization can live out its mission if its leaders don’t share its beliefs. Allowing all groups except religious groups to ensure that leaders are mission aligned is blatant religious discrimination,” said Daniel Blomberg, Becket’s senior counsel. “Schools are supposed to be a place of free inquiry and open thought, but the officials here punished opinions they didn’t like and promoted ones they did—all while using taxpayer dollars to do it.”
 
The U.S. Court of Appeals for the Eighth Circuit agreed and ruled against the University. The federal court told university officials it was “hard-pressed to find a clearer example of viewpoint discrimination” than their discrimination against religious student groups.
 
Protect The 1st salutes Becket for this victory and for its ongoing work to protect student clubs from unjust discrimination by university officials. All student groups deserve such lasting protection.

Rest assured, the state of Maine holds that it is perfectly okay for you to be a Catholic, provided you don’t teach children to believe in Catholic doctrine. Same with being a Protestant, a Jew, or a Muslim.
 
A strange split exists in the law concerning the difference between having the status or label of being an adherent to a religion and being so bold as to teach the tenets of that religion. A pair of Catholic and Protestant parents in Maine, David and Amy Carson and Troy and Angela Nelson, are petitioning the Supreme Court to resolve a split in the law and the philosophical mess that is Maine’s treatment of religious schools.
 
In 2020, it seemed as if recurring state discrimination against religious schools was finally going to be recognized as the constitutional violation it is. In Espinoza v. Montana Department of Revenue, the Supreme Court held that a state may not exclude families and schools from participating in a student-aid program because of a school’s religious status. Maine, in administering its tuition assistance program, agreed that it could not deny tuition benefits to students on the basis of their school’s status, but they could – and did – deny these benefits from schools that provide religious instruction.
 
Got that? Maine does not discriminate on the basis of religious labels but does discriminate on the basis of what those labels mean in practice.
 
The First Circuit Court of Appeals upheld the Maine law, agreeing that it is permissible to withhold tuition assistance from a school that, “in addition to teaching academic subjects, promotes the faith or belief system with which it is associated …” Christian schools could, presumably, qualify for the tuition assistance program provided they jettison any mention of Christ, the Bible, and any moment of the day dedicated to prayer.
 
It is easy to see why the Supreme Court has granted the petition and will hear this case. The Sixth and Tenth Circuits have held such exclusions to be unconstitutional, while the Vermont Supreme Court has upheld them. This split, which preceded Espinoza, survives it since Espinoza revolved around religious “status.”
 
“Only the Supreme Court can resolve this split, whether there is a constitutionally significant difference between discrimination based on ‘religious status’ and discrimination based on ‘religious use,’” said Gene Schaerr, general counsel of Protect The 1st. “The attempt to distinguish between religious status and religious practice is absurd and betrays official contempt toward faith. For the Supreme Court, the conclusion here should be, in baseball terms, a slow ball down the middle of the plate.”

Protect The 1st, launched in January, is off to a fast start.
 
From the beginning, one of our primary goals has been to encourage the judiciary to adopt robust interpretations of the constitutional freedoms of speech, religion, press, and assembly. One way we have done this is by filing briefs with the Supreme Court in cases that sharply define the enduring vitality of the First Amendment in the 21st century. Now that the Supreme Court has finished its 2020 term, we want to update you on the results of our continued efforts.
 
PT1st filed many amicus curiae – "friend of the court” – briefs in this term of the Supreme Court.
 
One of our first briefs was filed in support of the petitioners in Americans for Prosperity Foundation v. Bonta. That case ended with a spectacular 6-3 decision protecting the freedom of association.
 
The court considered the proper level of scrutiny when evaluating the constitutionality of a California scheme requiring charities to disclose the names of their donors to the state attorney general. Our brief demonstrated that disclosing donors to the government comes at a cost. Some donors, faced with the prospect of having their personal information disclosed, will choose to not donate at all – especially in this era of doxing, or using social media to target people for harassment and even physical attacks. We also demonstrated that government officials, historically, have used such information to abuse political opponents. And even when they don’t, there is a constant danger that if the information of all donors is centrally compiled, a savvy hacker or hostile leaker could find that information and release it publicly, or an inadvertent mistake could expose it. (This has happened before with disastrous consequences in California.)
 
The Supreme Court agreed with PT1st and recognized this “chilling” effect. The Court concluded that the risk of harm and the lack of a narrowly tailored means of addressing the state’s claimed need for the information made the California disclosure requirement facially unconstitutional.
 
PT1st also has urged the Court to consider First Amendment and privacy issues in other cases seeking Supreme Court review.
 
In Thompson v. Marietta Education Association, PT1st joined a coalition of public policy organizations to urge the Court to hold that it is a violation of the First Amendment to require public-sector employees to accept a single union representative to speak on their behalf, even if those employees object to that representative’s advocacy. Unfortunately, the Court declined to hear that case, but the issue is a recurring one and eventually the Court will be ready to address the question.  PT1st also will be ready to file a brief on the merits when that time comes.
 
Three other cases where PT1st filed a brief urging the Court to take a case are still pending.
 
First, we filed a brief in Boardman v. Inslee, asking whether the government can constitutionally give information about quasi-public employees to one union alone and not its potential rivals. We argued that the proper resolution of that question could affect the rights of hundreds of thousands of decentralized, quasi-public employees nationwide. This scheme, which insulates incumbent unions from meaningful challenge, undermines the very purpose of unionization—consent to collective action.
 
Second, we filed a brief in Project Veritas v. Rollins. We argued that a Massachusetts law that forbids public recording poses serious First Amendment problems and should be invalidated. Our brief summarized a list of issues that would be misunderstood—or never disclosed—without the work of undercover journalists. We also explained that because many of us take videos in public with smartphones, the Massachusetts law runs a real risk of making almost every teenager and adult in that state a felon.
 
Third, just last week, we filed a brief in Crowe v. Oregon State Bar. That case asks whether the government can require attorneys—whose membership in, and payment of dues to, state bar associations are mandatory—to subsidize the political speech of those bar associations, even if they disagree with that speech. We argued that the First Amendment forbids such mandatory association and compelled support for speech. We presented the Court with a list of examples of briefs filed by mandatory bar associations that push one side or another on contested public issues.
 
We’ll continue to monitor these cases and hope that the Court agrees with the petitioners. In the meantime, we are grateful to have had the chance to further our mission in these cases by helping the Court see the importance of protecting the First Amendment.
 
In this and in so many other related efforts, we are grateful for your continuing support.

​Erik Jaffe, policy director of Protect The 1st, examines the many complexities in the “fractured” opinions in the recent 6-3 decision by the U.S. Supreme Court in Americans for Prosperity v. Bonta.
 
In a presentation and question-and-answer podcast with the Federalist Society, Jaffe discusses the Supreme Court’s ruling that a California policy mandating disclosure of the identities of anonymous donors to the state government is facially invalid because it burdens donors’ First Amendment rights; and, because it is not narrowly tailored to an important government interest.
 

• Jaffe discusses the various levels of scrutiny that are applied in First Amendment law and how Chief Justice John Roberts and Justice Clarence Thomas differ on applying scrutiny in this case.

 

• He also discusses the dissenting opinion, written by Justice Sonia Sotomayor, which accepted at face value California’s promise not to divulge donor information, despite such breaches in the past.

 
“California has a long history of harassing, disclosing and failing to enforce the law regarding donor information,” Jaffe says.

​On Tuesday, the Supreme Court asked the Massachusetts Attorney General to respond to the petition in Project Veritas Action Fund v. Rollins, a case challenging a Massachusetts law that forbids public recording. This is a hopeful sign that at least one Justice is interested in hearing how that law – recently upheld by the First Circuit Court of Appeals – can be squared with the First Amendment.
 
Protect the 1st (PT1) filed an amicus brief in this case last month. In our brief, PT1 addressed a string of examples of undercover journalism that would have been lost if laws like Massachusetts’s were widespread. Such journalism has long helped to reform laws and expose wrongdoers.
 
This call for a response is a good sign. Not only does the case live another day, but it also allows the case to be fully briefed by the parties before the Justices decide whether to hear it. We’ll continue to monitor this case as new developments arise. 

​Does the Constitution allow Americans to be forced to subsidize ideological or political speech they disagree with? In a brief filed in the Supreme Court Friday in a case called Crowe v. Oregon State Bar, Protect The 1st argued that it does not.
 
The facts of the case involved attorneys forced by their mandatory bar association to fund the propagation of a variety of politically charged ideas that several Oregon attorneys did not want to push. These attorneys are not alone. Currently, attorneys in 31 states and the District of Columbia are compelled to finance mandatory bar organizations and, in the process, their speech. In its brief, Protect The First wrote:
 
“This puts attorneys in these states in an impossible dilemma; they must decide between ‘betraying their own convictions’ and earning a living by practicing law … Such a choice is no choice at all.”
 
It would be a mistake, however, to consider this a case solely about the rights of attorneys. As often happens, Crowe asks the Court to articulate the proper First Amendment standard for compelled speech. And it isn’t difficult to identify other areas where that standard, properly articulated, could have real-world implications for groups much more sympathetic than attorneys. Public universities, for example, often charge students mandatory activity fees, which then fund a variety of campus clubs furthering a variety of different goals. Any standard articulated in Crowe could have implications for them, too.
 
“This case is just one illustration of the broader problem of governments giving seemingly private members organizations, like labor unions, the power to force members to support political speech with which some members disagree,” said Gene Schaerr, general counsel of Protect The 1st. “The Court should recognize that mandatory political speech violates the First Amendment unless it can satisfy some heightened form of First Amendment scrutiny. We hope the Court will take the case.”

The Wall Street Journal offers a comprehensive and incisive editorial of last week’s 6-3 Supreme Court victory for donor privacy. In Americans for Prosperity Foundation v. Bonta, non-profits prevailed against California’s effort to force them to disclose their donors’ identities to the state. It is well worth reading.
 
One point from this piece leaps out at us. In its failed bid to track donors to non-profits, California has pledged to keep their identities private, despite disastrous lapses in digital security that in the past has exposed donors to bomb threats, protests, stalking, and physical violence. The Journal then makes a logical connection to a recent event that belies California’s promise that this time will be different. The Journal writes:
 
No one should be put at ease by California’s insistence that it will be more careful. The website ProPublica is running a series of tendentious articles based on IRS tax records from thousands of wealthy Americans. The files came from a leaker or a hacker whose identity ProPublica professes not to know. Nonprofit donor databases would be a juicy target for the next round of illegal disclosures.
 
Protect The 1st believes that even if California could be trusted to safely hold donor identities, state officials would still have access to a database that could inspire politically motivated or personal retaliation. Just the fear of that would chill civic involvement and speech.