The Supreme Court on Wednesday held oral argument in FEC v. Cruz, a case that challenges a limit on the repayment of funds a candidate loans to his own campaign. Section 304 of the Bipartisan Campaign Reform Act (BCRA) and its implementing regulations impose a $250,000 limit on the repayment of such loans from donations contributed after the election. That restriction imposes a burden on core political speech, as Protect The 1st explained in our amicus brief filed last month.
Justice Kavanaugh recognized that the practical effect of the loan-repayment limit is to deter candidates from spending money before they can raise funds:
“It would seem to me that the law puts the candidate to a choice of spending your own money for a loan above $250,000 and forgoing any repayment for an amount above $250,000, so the choice is to spend that without any possibility of getting it back, or not spending it at all. And that seems to be, therefore, a chill on your ability to loan your campaign money.”
That burden on political speech is particularly damaging for a challenger who “can't rely on contributions early in a campaign and has to get his campaign off the ground,” as Charles Cooper, attorney for Senator Cruz, explained. Personal loans from the candidate are thus critical to the candidate’s ability to speak early in the election, Mr. Cooper said.
As PT1st explained in our amicus brief, that ability to speak early can be crucial to a challenger’s success. Challenger candidates usually lack the name recognition and donor networks possessed by incumbents. “A candidate who cannot spend and raise funds quickly, and especially early in the race, is unlikely to win an election,” PT1st wrote. “The loan-repayment limit thus 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.”
While the FEC claims the law is about preventing corruption, several justices seemed unconvinced. Justice Barrett pointed out, “Senator Cruz says that this doesn't enrich him personally because he's no better off than he was before. It's paying a loan, not lining his pockets.” The FEC’s attorney conceded that a candidate who is repaid a loan is “certainly no better off than he was before the loan was made,” but argued that post-election contributors convey a financial benefit on the candidate by eliminating uncertainty about whether the loan will be repaid. Justice Barrett was undeterred, responding that in that respect, everyone who contributes to a campaign does the same.
Justice Alito agreed, saying he didn’t understand “why the repayment of this loan is a gift when the repayment of other loans is never considered a gift.” Justice Kavanaugh also agreed that this “is a loan, not a gift,” and asked why the existing limit on how much individuals can contribute isn’t sufficient to prevent corruption.
The justices are right that the loan-repayment limit doesn’t serve an anti-corruption interest; it wasn’t even designed to. As PT1st explained in our brief, the legislative history of the BCRA shows that the limit was likely designed to give incumbents an advantage over challengers. The Court “should not permit such self-interested protectionism by those already in office to infringe on the free speech rights of those who challenge them,” PT1st wrote.
Much of the questioning concerned whether Senator Cruz was ultimately challenging the constitutionality of the FEC’s regulation, not the underlying statute. The Court may hold on that ground that the three-judge district court that heard the case lacked jurisdiction, and that Senator Cruz’s challenge must be brought in an ordinary district court proceeding. However the Court decides, it is clear that the underlying burden on speech imposed by this regulation is well understood on the nation’s highest bench.
The oral argument for Shurtleff v. Boston – challenging the denial of a group whose flag prominently displays the Latin cross from accessing a city flagpole that was previously open to all other groups – revolved largely around two questions.
The city of Boston has an open policy of letting various groups fly their flags while holding events under the flagpole. Mathew Staver, the attorney for petitioner Camp Constitution, noted that for more than 12 years, the city exercised virtually no review of applicants seeking to fly their flag and hold their events on city property – until Camp Constitution made its application and Boston denied it permission to fly its flag. The U.S. Court of Appeals for the First Circuit upheld the city’s decision, ruling that the flags constituted government speech. The Supreme Court is now reviewing that decision.
Several justices asked: Would a reasonable person see the flag near city hall and conclude that Boston was endorsing Christianity?
Staver responded that the observer would view the celebration around the base of the flagpole and see it for what is: speech by private citizens, not the city.
Justice Samuel Alito asked the attorney for Boston what constitutes “government speech.” Justice Alito posed a thorny question:
“Suppose that it was a speaker’s platform in a park and they say you – anybody – can speak here, but you have to give us your speech in advance, and we’re going to exercise complete control over what you say. If we don’t like your speech at all, we’re going to reject it. If its got some things we don’t like, we’re going to edit it. Other than that, you can say anything you want subject to our complete control. That’s government speech?”
Alito summed up his view “that’s exactly what censorship is.”
Given that Boston allowed many groups of varying backgrounds to access the flagpole, the Protect The 1st amicus brief in this case stated that “this Court should reverse the First Circuit’s decision to make clear that the government may not evade the Free Speech Clause by engaging in precisely the kind of censorship that clause was enacted to prevent.”
Echoes of PT1st’s amicus brief were heard throughout the argument. The Court seems poised to hold that for speech on public property to be considered “government speech” – which does allow for viewpoint discrimination – the government must exercise robust control over messages. The government cannot just exclude viewpoints it disfavors by claiming its exercising control when it isn’t.
Another point from the PT1st brief that emerged in the discussion is the Justices seem to recognize that allowing displays of religious symbols on government property is not a violation of the Establishment Clause of the First Amendment.
Washington and Lee University Changes Policy on Political Activity/Free Speech for Student Organizations
Washington and Lee University has just made a significant change in its Student Handbook to explicitly allow student organizations like College Republicans, College Democrats and others to more fully exercise their free speech rights on campus, including sponsoring political activities such as setting up tables on campus, displaying political signs, handing out political literature and holding events of a political nature.
Bob Goodlatte, Senior Policy Advisor of Protect The 1st (a non-partisan, non-profit organization that defends First Amendment freedoms), former Chairman of the House Judiciary Committee, and a graduate of Washington and Lee University School of Law, advocated for the change with school officials.
In November, Protect The 1st reported that during the 2021 Virginia statewide elections, Washington and Lee University school officials prevented campus College Republicans from displaying campaign materials for Glenn Youngkin, the GOP candidate for governor who ultimately won election. Protect The 1st pointed out this infringement of the political speech rights of students, and noted similar actions, such as Georgetown University Law Center’s crackdown in 2016 on a group of students handing out materials on campus in support of Sen. Bernie Sanders’ presidential campaign.
“Strong institutions listen and adjust,” Goodlatte said. “I commend Washington and Lee for listening to their students, and to organizations like Protect The 1st and the Foundation for Individual Rights in Education (FIRE), moving quickly to allow student organizations to exercise their right to political activity and speech on campus.”
The university had a long-standing policy based on unfounded concern that its tax-exempt status precludes partisan activity by students.
Washington and Lee’s Student Handbook now allows this activity, while making it clear that students must issue a disclaimer that their activities are those of the students and visiting speakers, and not the university.
“Political speech is central to what the founders had in mind when they wrote the First Amendment,” Goodlatte said. “Universities are not meant to be museums of ideology. It advances their mission to remain centers of hot debate and clashing ideas.”
Some prayers do get answered – at least partially. The U.S. Supreme Court will hear the case of high school football coach Joseph A. Kennedy, who was pushed out of his job by school board officials in Bremerton, Washington, after he defied their order to refrain from kneeling and praying at the 50-yard line after his team’s games.
As we’ve noted before, this case has been something of a judicial football, with one “turnover” after another before the courts. Now it has finally landed for what should be the final quarter, this time with Justice Amy Coney Barrett, who has been notably interested in the free exercise of religion throughout her career.
It is not surprising that the Court is hearing a case that the Ninth Circuit Court of Appeals declined to rehear over the objections of 11 judges. Justice Samuel A. Alito wrote for several other justices in 2019 that language from the Ninth Circuit “can be understood to mean that a coach’s duty to serve as a good role model requires the coach to refrain from any manifestation of religious faith – even when the coach is plainly not on duty.”
Allowing public employees to pray on private time sounds like a reasonable standard, one we hope the Court will uphold.
Thomas Jefferson asked that three accomplishments be listed on his tombstone. Aside from noting his authorship of the Declaration of Independence and founding of the University of Virginia, he wanted his tombstone to state that he was the author of the Statute of Virginia for Religious Freedom.
What was it about this state law that led Jefferson to see it as a more consequential legacy than the two terms of his presidency?
Jefferson removed the Episcopal Church as Virginia’s state-sponsored religion and replaced it with none other. His statute guaranteed freedom of belief for Jews, Hindus and Muslims, as well as all denominations of Christians. His law is celebrated by scholars today as the inspiration for the First Amendment of the U.S. Constitution.
The Virginia Assembly enacted Jefferson’s proposal on Jan. 16, 1786. This day is established each year by presidential proclamation as National Religious Freedom Day. Jefferson himself proclaimed:
“That our civil rights have no dependence on our religious opinions any more than our opinions in physics and geometry.”
We can trace an evolution in the growing respect for religious diversity throughout American history. Some 137 years before the passage of Jefferson’s statute, the colonial assembly of Maryland passed the Maryland Toleration Act. At a time when England was wracked by a civil war over religion, Maryland granted freedom of religion to all Trinitarian Christians in 1649.
While it sounds like a narrow milestone today, the Maryland Toleration Act was a breathtaking achievement in 1649. The political impetus for the act came from the Calverts, the powerful founding family members of the colony who wanted to protect their fellow Catholic settlers from the Anglican and Presbyterian churches dominant in other colonies. As generous as the act was, in theory it allowed the state to sentence to death anyone who denied the divinity of Jesus and the Holy Trinity, though no Jews or Unitarians were in fact executed. For Trinitarian Christians, at least, it protected the “free exercise” of religion – the first mention of the clause so prominent in the later First Amendment.
Thus, a measure to protect mainstream Christians inspired Thomas Jefferson to protect all religions in Virginia. This statute in turn led to the drafting of the First Amendment. And that topline protection of the free exercise of religion is now enforced by the Religious Freedom Restoration Act of 1993, which instructs courts to employ strict scrutiny when evaluating violations by the federal government of the rights of people of all faiths and no faith.
How well are these rights observed today? Are we still evolving in the direction of religious liberty?
Last year, Protect The 1st filed a brief in Carson v. Makin, a U.S. Supreme Court case that will determine if the State of Maine can discriminate against religious schools. In parts of rural Maine, where no public school alternatives exist, funding is available to all private schools – except for religious ones. Even though Christian and Catholic schools in Maine teach all state-required courses and all standards, they are disallowed because they also have religious activities. The fact that the Supreme Court heard this case, and the Justices asked skeptical questions about Maine’s discriminatory stance, is a good indication that respect for the free exercise of religion is strong in the judiciary.
On the other hand, the actions of Congress and some courts toward the members of the Apache Stronghold in Arizona show a grave lack of respect for the religion of an American minority. Oak Flat is a part of the Tonto National Forest that has long been central to the religion of the Apache people. Under a federal deal blessed by Congress, a foreign mining company plans to dig for copper on the Apaches’ sacred land, gouging a pit as long as the National Mall and as deep as two Washington monuments.
Somehow, a court failed to see this grotesque evisceration of a sacred and irreplaceable site as a burden on the free exercise of the Apache religion. Protect The 1st hopes that the Ninth Circuit Court of Appeals will see the contradictions in the ruling of a lower court and restore the religious rights of the Apache people.
We also see a growing desire among many to chip away at the guarantees of the First Amendment and the Religious Freedom Restoration Act that bolsters those guarantees. We see that respect is wavering for minority religions, for Sikhs who wear turbans and carry kirpans, for Muslims and Jews who want to serve our country in the military while being observant in the wearing of their beards.
The arc of history is always incomplete. Our freedoms are always reversible. But the achievements we celebrate today give us reason to look ahead with hope.
You really can’t make this stuff up. A student group at Emory University Law School dedicated to the protection of free speech has been denied recognition because it could lead to … free speech.
The Emory Law Student Bar Association (SBA) ruled that the free speech discussion group “will likely give rise to a precarious environment – one where the conversation might very easily devolve.”
Why such pessimism about one’s fellow law students? Might these discussions also evolve into a healthy environment? Or might they both evolve and devolve in the same conversation, presenting actual choices for law students to think about? One is tempted to send Emory’s SBA on a field trip to the BBC headquarters in London, where a statue of George Orwell is attended by a quote carved in stone: “If liberty means anything at all, it means the right to tell people what they do not want to hear.”
We owe it to the Foundation for Individual Rights in Education (FIRE) for reporting and challenging the denial of the Emory Free Speech Forum’s application for a charter. As FIRE points out, this denial has real-world consequences. Any student group needs such recognition to reserve rooms in the university, ask for funding from the Emory Student Bar Association, and operate on campus.
Throughout the academy, we see a desire to squelch speech out of the fear that someone might say something reprehensible. Make no mistake, free speech can sometimes include the truly reprehensible, for which there can be consequences, from social ostracism, to a visit with the dean, to outright expulsion. But democracy cannot allow the fear that someone, somewhere, might say something wrong-headed to shut down all free inquiry.
Such truths used to be almost universally shared as a basic American value. That this seems not to be understood by many in our universities may point to a need for better instruction earlier in life – to instruct high school students once again in what used to be called “civics.”
By April, the Biden Administration will release new rules that will give teeth to many of its social policies. Among them is one anticipated HHS rule, which is intended to serve the needs and rights of vulnerable groups but might do so at the expense of the protections of the Religious Freedom Restoration Act and Supreme Court decisions that upheld the free exercise of religion.
If this HHS rule is issued as it appears to be shaping up, it would gut religious liberty protection laws, requiring Catholic hospitals that receive federal funds to perform abortions, and physicians to perform gender-transition surgeries even if those doctors have objections to those procedures.
We can see the outlines of this policy thanks to a leaked memo reported recently from The National Catholic Register. That publication obtained a memo from a Who’s Who of social activist groups acting as a leadership committee advising HHS. That advisory group recommends that HHS expand what discrimination on “the basis of sex” means under the Affordable Care Act (ACA).
With this seemingly small tweak, the memo advises HHS to flatly define denial of “termination of pregnancy” as discrimination, with a host of other activities that many religious organizations simply could not pay for or perform as a matter of conscience. If followed, HHS would require Catholic hospitals – which provide care for one in six U.S. patients – to choose between violating their core beliefs or being sanctioned by the government.
The Catholic Benefits Association told The Register that if HHS follows the activist group’s road map, “all employers of any size with health plans, insurers, self-funded plans, federal funding recipients and their subcontractors, Medicare and Medicaid providers and Catholic hospitals and health-care providers would be affected.”
“There’s no place to hide from this,” the CEO of the Catholic Benefits Association told The Register. Archbishop William Lori of Baltimore, added:
“When you attack the very idea of religious freedom, as contrary to the First Amendment, you’re really putting everybody’s freedom at risk. Freedom of speech and freedom of assembly, all these fundamental freedoms really travel together.”
Protect The 1st will keep an eye on how this rule develops. Surely, cooler heads in the White House will realize that trying to require Catholic hospitals in the nation to perform abortions is overreaching, to say the least.
St. Timothy’s Episcopal Church is fighting a town edict that prohibits the church from feeding homeless people more than twice a week – and in so doing, is defending the right to religious expression through good works.
The city council of Brookings, Oregon, passed an ordinance in late October that severely restricts area ministries from feeding the city’s homeless population. The new ordinance halves the ability of St. Timothy’s to provide food – from four days a week to just two. The ordinance, which directly targets the church and faith ministries in the area, was passed after some city residents complained about the ministry’s soup kitchens. St. Timothy’s is not the only target of such measures. Localities around the country have tightened restrictions that give aid to the homeless.
This case reminds us that the First Amendment does not merely protect the rights of the religious to worship on Sunday (or Friday, or Saturday). It also protects the right to express devotion by helping the helpless. Charitable work has been fundamental to religious ministry in the United States since the country was founded. As Rev. Bernie Lindley, vicar of St. Timothy’s, said, “Feeding hungry people is at the core of what our church believes Jesus calls us to do. We do not see how a municipality can interfere with that mission without violating our constitutional right to freely practice our faith.”
That is the essence of religious expression. It’s no wonder the leading religious liberty law firm, Becket, recently awarded their 2021 Ebenezer Award to Brookings, Oregon.
Since we opened our doors in January 2021, we have been active before Congress, the courts and in public opinion to protect all the five freedoms of the First Amendment.
In our first year, Protect The 1st stood up for people from across the ideological and social spectrum, of all religions and no religion. We opposed retaliation by government and other powerful entities against unpopular speech. We have stood for legislation that protects the confidential sources of reporters. We have advanced measures to protect speech, conscience and religious freedom in the military, and in private religious schools, and elsewhere.
Freedom of Speech
Freedom of the Press
In the year ahead, Protect The 1st will continue to fight for these causes. We will add to our agenda any significant effort to curtail, degrade or squelch freedom of speech, religion, freedom of the press, the right to petition the government, and to peaceably assemble.
As we wrap up the first year of Protect The 1st, this is a good time to revisit the amendment we are dedicated to guarding and extending. The desire to improve (or fiddle) with the Constitution is today shared by many groups, left and right, as well as by many judges. But what would you do if you could just rewrite it?
The Boston Globe recently commemorated the 230th anniversary of the ratification of the Bill of Rights with a special section, which “asked legal experts, advocates, journalists, and members of the next generation what changes they’d make to the Constitution if they could.”
Mary Anne Franks, a former Rhodes Scholar and University of Miami law professor, argues that the First and Second Amendments are flawed because they are “highly susceptible to being read in isolation from the Constitution as a whole and from its commitments to equality and the collective good.”
Further, she writes, these amendments “tend to be interpreted in aggressively individualistic ways that ignore the reality of conflict among competing rights. This in turn allows the most powerful members of society to reap the benefits of these constitutional rights at the expense of vulnerable groups.”
Franks explains that perhaps Congress should enact a new First Amendment along these lines:
Every person has the right to freedom of expression, association, peaceful assembly, and petition of the government for redress of grievances, consistent with the rights of others to the same and subject to responsibility for abuses. All conflicts of such rights shall be resolved in accordance with the principle of equality and dignity of all persons.
Both the freedom of religion and the freedom from religion shall be respected by the government. The government may not single out any religion for interference or endorsement, nor may it force any person to accept or adhere to any religious belief or practice.
The actual First Amendment simply says:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
As to Franks’ elaboration on religion, the current language achieves her goal of freedom of religion (and from religion) with an economy of words. That’s the terse, elegant power of our Constitution. The Founders’ understood that centuries of lawyering, if given sufficient verbal hooks, would be apt to erode even the most clearly enunciated rights. With similar logic, the First Amendment protects the occasional bigot, yes, but it also ensures that powerful organizations and groups cannot shut up men and women of conscience who criticize them.
The First Amendment as it is also defends speakers against being prosecuted for violating vague values like someone’s “dignity,” a qualifier that Franks would balance against your right to speak. Who gets to decide what erodes whose dignity? Agree with Franks’ rewrite, and you’re well on your way to arresting the likes of Lenny Bruce and Robin Williams, if not Mark Twain.
Finally, why did she excise freedom of the press? Perhaps Franks did this because, in an era of blogging, we’re all part of the media now. Protect The 1st holds to the notion that having a specific, designated recognition of the press is essential to protecting the right to investigate, criticize and humble the powerful.
It is the First Amendment’s focused, economy of words that prompted British Prime Minister William Ewart Gladstone to describe the U.S. Constitution – still the oldest written constitution in effect today – as “the most wonderful work every struck off at a given time by the brain and purpose of man.”
These are forty-five words for all seasons and all ages.
A federal court in Richmond will soon hear arguments in a lawsuit filed by a news organization against the Commonwealth of Virginia for its policy of blacking out court records for public access over the internet.
Virginia law only allows remote access to court documents to attorneys and their staff. One reporter, Brad Kutner – who works for the plaintiff in this case, Courthouse News Service – drives to multiple cities each day to visit state courts just for access to the latest filings from public terminals.
For a comprehensive review of the day’s court filing, a journalist would have to drive 485 miles, visiting 120 courts from Virginia Beach in the south to Lee County in the state’s western tip.
Virginia’s attorney general’s office argues that it has “a legitimate state interest in protecting court records from the ease of exploitation that a limitless internet database would provide.” The AG’s office left unclear how “limitless” access could “exploit” court records, and why this is not a problem for the majority of states that post court documents online.
Courthouse News Service alleges the law discriminates against the press and violates free speech under the First and 14th Amendments. It would not be smart to bet against this media organization. In November, it won $2.4 million in attorneys’ fees in a case against clerks in Norfolk and Prince William, who had been holding back access to new civil complaints while they indexed and scanned them.
In that case, U.S. District Judge Henry Coke Morgan Jr. ruled against the clerks on First Amendment grounds. During the trial, he compared fresh news to “fresh bread.”
Not only are the First Amendment rights of journalists violated by forcing them to, in the judge’s words, sell “stale bread,” but as Brad Kutner adds, “it keeps the public out of the loop as well.”
Jana Winter, investigative correspondent of Yahoo News, recently wrote a must-read piece about a secretive unit within Customs and Border Protection (CBP).
Winter reviewed a 500-plus page inspector general report on this unit which, she reports, “had few rules and routinely used the country’s most sensitive databases to obtain the travel records and financial and personal information of journalists, government officials, congressional members and their staff, NGO workers and others.”
Furthermore, Winter reports that “as many as 20 journalists were investigated” as part of the wide-ranging and apparently rogue operations of this unit. These activities eventually led to referrals of officials in this CBP unit for criminal prosecution. None were charged.
One agent in this unit, Jeffrey Rambo, interacted with a journalist, Ali Watkins, who was involved with James Wolfe, the long-time Security Director of the U.S. Senate Select Committee on Intelligence. Wolfe was later fired and sentenced to two months in prison for lying to the FBI in an investigation of intelligence leaks regarding Watkins.
From the account, it appears that Rambo’s digging may have alerted the FBI to this potential leak from the Senate Committee. But Winter’s account also shows this CBP unit casted a wider net that included not only Watkins, but also journalists with the Associated Press, The New York Times, as well as Huffington Post founder Arianna Huffington.
Winter’s story portrays Rambo as trying to “recruit” a journalist for a “PsyOp” operation. As thorough as Winter’s account is, it leaves us with many unanswered questions ripe for a Congressional hearing.
A comical thread runs throughout Winter’s report. For all of Rambo’s attempts to play the role of an anonymous spy with Ali Watkins in a furtive, late-night meeting at a bar, Watkins easily defeated his attempts at anonymity by returning to the bar to ask a bartender for Rambo’s credit card receipt. We have seen elsewhere how small and marginal centers in the government attempt to play spy games in the style of a John Le Carré novel, only to come closer to resembling the ludicrous characters in the movie, “Burn After Reading.” But the report has too many disturbing implications for the First Amendment to evade Congressional scrutiny.
Federal Election Commission v. Ted Cruz for Senate
Protect the First Foundation filed an amicus brief in a case that challenges a restriction on the ability of campaign committees to repay funds a candidate loans to his own campaign.
The case involves Section 304 of the Bipartisan Campaign Reform Act, which imposes a $250,000 limit on the repayment of such loans using funds contributed after the election. Sen. Ted Cruz of Texas loaned $260,000 from his personal bank accounts and margin loans to his committee to finance his re-election. After the election, the Cruz campaign used pre-election contributions to repay other creditors before repaying Sen. Cruz himself. When the campaign began repaying Sen. Cruz the month after the election, the loan-repayment limit prevented the campaign from repaying $10,000 of Cruz’s personal loans.
PT1st supports Sen. Cruz’s position because it involves Americans’ most fundamental rights to run for office and to pay for political speech. PT1st’s amicus brief demonstrated to the Court that:
“The loan repayment limit is nothing more than political protectionism, passed by well-heeled and well-connected politicians with massive war chests that insulate them from the threat of a challenger.”
PT1st noted that all candidates need access to funding early in a campaign to establish their place in the race, but early spending is particularly important for challengers. Candidates of modest means often must rely on their own resources to be competitive. The practical effect of the loan repayment limit is to deter candidates of limited means from spending money in advance of raising funds.
Thus, “the loan repayment limit provides an advantage to incumbents at the expense of challengers, particularly challengers of limited means.”
For all these reasons, PT1st wrote to the Court that Section 304 imposes an unconstitutional burden on free speech.
An investigative piece by The New York Times today reveals that the FBI stationed undercover agents to infiltrate the protest movement in Portland, Oregon, and other cities. Begun in the violent aftermath of the protests and violence in Portland after the murder of George Floyd in Minneapolis, the operation continued past the inauguration of President Joe Biden.
The Times piece is notable for setting out the complex issues involved in this operation. On one hand, Portland protesters had started fires, smashed windows and threatened a federal courthouse. One protester attacked a federal officer with a hammer.
On the other hand, positioning the eyes and ears of the government inside a protest movement weakens the First Amendment rights of the peaceful. According to The New York Times, some in the Department of Justice and FBI worried that the practice could easily slip into the COINTELPRO practices of a previous era, when the federal government routinely and widely surveilled political dissenters.
That internal debate – and The Times’ thorough reporting of it – is a healthy sign. So is continuing vigilance by civil liberties advocates.
“Yet within the social platforms’ walled gardens, society and government are subordinate to private censorship, with social media companies, through their content moderation policies, now deciding what we see and say and even what policies our elected officials are permitted to publicly embrace on their platforms.”
The non-partisan Real Clear Foundation published a white paper by Kalev Leetaru, internet entrepreneur and theorist, that sets out in detail the ways in which the status quo in social media content moderation is unacceptable. Social media companies have an absolute right under the First Amendment to moderate their platforms as they wish. But “network effects” – the tendency of mass audiences to cluster around a few platforms like Facebook, Twitter and Google – ensure that a decision to remove a post or deplatform a site amounts to “private censorship” and exile from the debate.
Worse, when private companies establish rules for content, they are in Leetaru’s words “opaque and their enforcement uneven.” Witness the travails of John Stossel, the Emmy Award-winning television journalist and libertarian, who chronicled how he has been misquoted and mischaracterized by Facebook’s “fact checkers.” Liberals are upset that the algorithms of social media inspire social division and hatred. Conservatives are hopping mad about having their posts slapped with “warning labels,” or deleted altogether.
So what to do?
Leetaru turns to Wikipedia as a model of transparency. Wikipedia has clear rules, a chronologically documented history of all content actions, and publicly archived conversations between contributors and moderators. On Wikipedia’s “Talk” pages, such open debate eventually leads to a settled consensus.
In a similar way, social media companies – in exchange for the extraordinary protections they receive from Section 230, far beyond any enjoyed by traditional publishers – should have reciprocal obligations. They should be required to “fully publish all their policies, guidelines, and precedents, eliminate their unpublished exemptions, clearly explain every decision in plain language, and offer rapid appeals” to make moderation “more objective and standardized.” Leetaru argues for tearing away the veil from social media removal decisions. This would benefit the companies, because its decisions “would no longer seem as politically motivated and capricious.”
This approach fits in well with bipartisan legislation, the Platform Accountability and Transparency Act (PACT Act), co-sponsored by Sens. Brian Schatz (D-HI) and John Thune (R-SD), which would require more transparent processes in content moderation, along with an appeals process for the cancelled. Kalev Leetaru’s paper might offer a strong and detailed plan for fleshing out such transparency and accountability.
Prosecutors have a hard job. They deserve a lot of leeway and public understanding that their actions are going to be continually second-guessed and criticized. But they are not perfect. As public officials, complaints against them should not be hidden from the public. And prosecutors should not be able to squelch the free speech rights of those who file formal grievances against them.
But that is exactly what the law allows in New York and many other states.
A group of law professors demonstrated this by filing formal grievances against 21 prosecutors in Queens. These filings involved prosecutors who were found by appeals courts to be guilty of misconduct, ranging from lying in court to withholding key evidence from the defense.
Now the corporation counsel, New York City’s top attorney, is warning the professors they will face some unspecified punishment for violating a state law that shields formal complaints against prosecutors from public scrutiny. The corporation counsel is also denying these professors access to updates on their complaints. In a splendid piece of eloquent outrage, the editorial board of The New York Times wrote:
For good measure, the corporation counsel then sought to keep secret the letter requesting the professors be punished for violating the secrecy law. This isn’t just shooting the messenger; it’s tossing the gun into the East River and threatening anyone who tries to fish it out.
We doubt that these law professors are quaking in their boots. But imagine the impact such a threat has on someone with limited resources who lacks the prestige and power of a law professor. That person, whether a convicted person’s spouse or parent, may well think twice before exercising her First Amendment rights.
This lack of transparency, moreover, is not unique to New York. At the federal level, while most of the Department of Justice (DOJ), FBI and Drug Enforcement Administration officials are subject to review of their actions by an inspector general, there is a carve out for federal prosecutors. Their actions are reviewed by the Office of Professional Responsibility which, The Times reports, “almost never makes its findings public.”
Thankfully, a bipartisan bill co-sponsored by Sen. Dick Durbin (R-Ill) and Sen. Mike Lee (R-UT) would empower the DOJ inspector general to review claims against federal prosecutors, just as that office does for other DOJ employees. Officials who have the power to put people in prison or on death row should not enjoy secret protections. In New York, they especially should not be able to threaten the First Amendment rights of those who want to speak about their complaints.
We will continue to monitor the progress of The Bipartisan Inspector General Access Act. In the meantime, we hope that New York’s corporation counsel will recognize that such threats are repugnant to the First Amendment.
Protect The 1st Applauds Judge Torres’ Decision to Appoint a Special Master to Review Project Veritas Evidence
Journalists and defenders of the First Amendment have reason to applaud the decision of Judge Analisa Torres, who granted a request by Project Veritas that a special master be appointed to review confidential, journalistic materials seized by the FBI in a dawn raid last month.
In an apparent desire to determine who gave O’Keefe access to the stolen diary of President Biden’s daughter, the FBI seized O’Keefe’s cell phone and those of two of his colleagues. Groups ranging from the American Civil Liberties Union to the media columnist of The New York Times – not philosophically aligned with the conservative activists in Project Veritas and its leader, James O’Keefe – have questioned the invasive tactics of the Department of Justice and FBI.
The contents of a cell phone, as the U.S. Supreme Court has noted, reveals the private information of its owner – and compromises any source a journalist has been in contact with. O’Keefe said that “on my phone were many of my reporters’ notes, a lot of my sources unrelated to this story and a lot of confidential donor information to our news organization.”
Protect The 1st applauds Judge Torres’s decision. O’Keefe never published the contents of the diary and says he had reported it to law enforcement. If this violation of O’Keefe’s digital life is allowed to stand, no media organization will be safe from battering rams and digital confiscations.
This is a welcome step, but it is a first step. Attorney General Merrick Garland, who in July enacted policies to restrain federal investigators from seizing reporters’ records, should reinforce his policies with his department. Attorney General Garland wrote:
“The United States has, of course, an important national interest in protecting national security information against unauthorized disclosure. But a balancing test may fail to properly weight the important national interest in protecting journalists from compelled disclosure of information revealing their sources, sources they need to apprise the American people of the workings of their government.”
Clearly, Attorney General Garland needs to make it clear to his subordinates that his memo was not a suggestion.
The Supreme Court heard oral argument in Carson v. Makin this morning. During the argument, Michael Bindas, the lead attorney for a group of Maine parents, batted back one hard question after another.
What is this case about? Maine refuses to allow parents who qualify for tuition assistance programs to use their funds to send their children to religious schools that meet state education certification standards if they also impart religious teachings and hold religious activities. So a parent could theoretically accept funding for a “Catholic” school, provided it is Catholic in name only. Even one Bible class or the administration of communion to its students would render a school ineligible to participate in the program. This case asks whether that system violates the Religion Clauses of the First Amendment. Earlier this year, Protect the 1st argued that it did.
Several Justices asked whether, if petitioners won, it would amount to a state subsidy of religious schools. Bindas noted that the money only goes to parents, who then decide where they send their children. Justice Clarence Thomas added later that Maine – like all states – makes school attendance compulsory, and that in some rural areas the only option is a religious school.
When asked whether Maine would fund a school that teaches in science class that evolution is a lie, Bindas replied that religious schools must meet Maine’s standards of education – and that the Maine Legislature can require the teaching of evolution in science classes.
When he was asked whether these schools discriminate against students on the basis of gender, sexuality or race, Bindas replied that all religious schools practice “inclusion and diversity through the lens of faith.”
Such difficult questions took up a lot of time at the argument. What about the First Amendment, which forbids the establishment of a religion? Wouldn’t state funds to these schools constitute a violation of the Establishment Clause? No. Bindas told the Justices that the real affront to the Constitution is allowing a regulator in Augusta, Maine, to review schools’ curriculum and decide if a school is “sufficiently irreligious or too religious.”
We agree. Maine’s decision to deny access to public funding based on that school’s religious beliefs, according to the sensibilities of a regulator, violates the Constitution.
Based on how the Justices reacted to the arguments made today, we believe the Court will invalidate Maine’s discriminatory system. If they do, it will be a significant win for religious liberty.
To have one’s posts removed by Facebook, Twitter and YouTube is not, in a legal sense, a violation of one’s First Amendment rights. Facebook’s rights to manage speech on Facebook are identical to your First Amendment rights to manage your own website.
While we want social media platforms to remove content that harms national security or incites violence, to be evicted by Facebook or any other platform that dominates the marketplace of ideas greatly limits the reach of one’s voice. Striking the right balance – finding the right formula for content moderation – has proven to be perplexing for industry and highly controversial for policy makers.
The deletion of harmless content is frequently the result of artificial intelligence programs that fail to understand the nuances of human communication. Thus, we find posts that document war crimes by terrorists in Syria are conflated with terrorism and removed.
In a new podcast from the Electronic Frontier Foundation, Cindy Cohn and Danny O’Brien talk with Daphne Keller of the Stanford Center for Internet and Society to explore the pitfalls of the current regime of content moderation – and how ideas for reform might make it better or worse.
In the early internet era, platforms for speech were distributed throughout society, which prompted digital visionaries to wax poetic about the democratization of speech. Now internet speech is more centralized within dominant platforms. The perception is widespread that the national dialogue is being distorted. Why has this happened?
The sheer scale of moderation on a Facebook for example means that they have to adopt the most reductive, non-nuanced rules they can in order to communicate them to a distributed global workforce. And that distributed global workforce inevitably is going to interpret things differently and have inconsistent outcomes. And then having the central decision-maker sitting in Palo Alto or Mountain View in the U.S. subject to a lot of pressure from, say, whoever sits in the White House, or from advertisers, means that there’s both a huge room for error in content moderation, and inevitably policies will be adopted that 50 percent of the population thinks are wrong policies.
Keller, Cohn and O’Brien discuss possible solutions, including schemes to reduce internet standards of conduct to the “level of a local café” or town square. EFF’s podcast is a thoughtful discussion, one in which the speakers show great humility in the potential for suggested reforms to have serious unintended consequences.
For our part, Protect The 1st supports the Platform Accountability and Consumer Transparency (PACT) Act. This bipartisan Senate-sponsored legislation would require greater transparency by social media companies and some due process for consumer complaints by those who’ve had content removed.
The PACT Act would likely not be a comprehensive solution to the dilemma of internet content moderation. But enacting it would undoubtedly reveal paths to further improvements and refinements in how speech is moderated by a handful of companies, without compromising the First Amendment.
On Wednesday, U.S. District Judge Robert Pitman blocked a Texas law designed to crack down on perceived censorship by social media companies of conservative posts and ideas. The law would have heavily regulated the content decisions of platforms with 50 million active users (another way of saying Google, YouTube, Twitter and Facebook). Judge Pitman determined that the statute violates the First Amendment freedom of speech rights of the social media platforms.
The legislation, signed into law by Gov. Greg Abbott in September, would have treated large social media platforms as “common carriers.” It would have allowed any Texas resident who believes he was improperly “censored” to sue the tech giants. The state attorney general would also have been empowered to sue on behalf of users.
Judge Pitman objected. He wrote that social media companies have a right to exercise editorial judgment and that interference in that process “chills the social media platforms’ speech rights.”
Judge Pitman’s ruling reminds us that the First Amendment is meant to protect Americans from governmental censorship. Decisions by private companies to modify or remove content from their platforms are protected by the First Amendment and cannot be prevented by government action.
Looking beyond this ruling, however, it is fair to note that the dominance of large social media companies in the marketplace of ideas is so complete that to be demonetized and “deplatformed” by big social media can sometimes have the same effect as censorship. Removing a post makes sense when, for example, the content poses a threat to national security or to public health, and when the deplatformed person has engaged in a persistent pattern of posting such harmful material. The absence of clarity about how content moderation decisions are made and the standards that guide the decisions have given rise to understandable concerns and calls for change. The Texas law was a clumsy attempt to address these concerns.
An example of social media company conduct underlying such concerns was highlighted in a Sept. 13 Wall Street Journal article, which was part of its series questioning Facebook’s practices. The Journal revealed that Facebook has “whitelisted” elite users who enjoy broader and more lenient standards for their content than most users. “We are not actually doing what we say we do publicly,” an internal Facebook review reported. The review called the company’s actions “a breach of trust” and added: “Unlike the rest of our community, these people can violate our standards without any consequences.”
Social media companies are standing on solid constitutional grounds but remain in risky political territory by testing the patience of their customers. The status quo is sure to tempt lawmakers to pass more ill-considered laws. Social media companies should consider:
Such requirements could be enacted in exchange for the special liability protection internet-based companies enjoy. Senators Brian Schatz (D-HI) and John Thune (R-SD) have proposed the PACT Act, a bipartisan measure that would require social media companies to adopt many of these provisions in exchange for having legal immunity under Section 230 of the Communications Decency Act for content posted on their platforms by third parties.
For now, however, the courts are right. If First Amendment rights can be curtailed for social media companies, then they can be curtailed for anyone.
Over the weekend, former Secretary of Defense Mark Esper unveiled a lawsuit against the department he once led. As the law requires former U.S. officials to do, Esper submitted his memoir – A Sacred Oath – to the government for a review of any material that could damage national security. The Pentagon sent his manuscript back with redactions of words, sentences and whole paragraphs across about 60 pages. No written explanation for the redactions was offered.
A week before Esper filed suit to free his book from redaction, the American Civil Liberties Union and the Knight First Amendment Institute petitioned the U.S. Supreme Court to review this whole process of “prepublication review.” They acted on behalf of five former employees of the Office of Director of National Intelligence, the CIA, the Naval Criminal Investigative Service and the Marine Corps.
Prepublication reviews, once a limited program imposed on former CIA and other intelligence-agency employees, have since widened into a vast system of lifelong prior restraint applied to millions of Americans who were once in government service.
In the prepublication arena, ACLU and Knight are taking dead aim at a 41-year-old precedent, Snepp v. United States (1980). Frank Snepp was a CIA intelligence analyst in Saigon and one of the last Americans to leave after the collapse of the South Vietnamese regime. In private life, Snepp published a scathing book in 1977, Decent Interval, portraying the CIA as inept and the Nixon Administration as both self-deceiving and Machiavellian.
Snepp did not clear his book with the CIA, despite having signed an employment contract committing him to do so. When the agency sued Snepp, the former analyst argued that he was being subjected to prior restraint, a violation of the First Amendment. The Court disagreed. Six Justices upheld a lower court ruling that Snepp had breached the “constructive trust” between himself and the CIA. The Court also stripped Snepp of all his royalties, about $300,000.
The courts might also take note of a more recent standard, however, applied to former National Security Advisor John Bolton after he wrote a memoir, The Room Where It Happened. When officials in the Trump Administration sat on Bolton’s book, which included many anecdotes embarrassing to President Trump, Bolton published his book anyway. The Department of Justice sued for Bolton’s profits and launched a criminal investigation. In June, the current attorney general, Merrick Garland, dropped the lawsuit and investigation.
General Garland is moving toward a better approach, a direction that should be picked up by the courts. Revelations and insights from former government officials give Americans a sharper understanding of the workings of our government. The current prepublication system is too broad, too clunky, and a defilement of the First Amendment.
Protect the First Foundation filed an amicus brief in Shurtleff v. Boston on Nov. 22nd in support of petitioners Harold Shurtleff and Camp Constitution. On the same day, the U.S. Department of Justice filed a brief of its own in support of the petitioners.
In this case, the city government of Boston allowed groups that host events on a city plaza to hoist their flags on a city-owned flagpole. Boston’s website states that the flag-raising program commemorates “flags from many countries and communities” with a goal to “foster diversity and build and strengthen connections among Boston’s many communities.” But when Camp Constitution — a group dedicated to celebrating the nation’s Judeo-Christian heritage and the Constitution — sought to fly its flag, the city denied it permission.
The U.S. Court of Appeals for the First Circuit ruled that Boston was permitted to deny the flying of Camp Constitution’s flag (which includes a crimson cross against a blue background). The 1st Circuit reasoned that the decision was permissible because the flag would have been a “powerful governmental symbol” in favor of a religion. (Many have noted the irony of Boston taking this position. Its city flag proclaims in Latin, “God be with us as he was with our fathers.”)
Now the Biden Administration’s DOJ is lining up behind arguments made by Protect the First Foundation and 15 other groups that have filed amicus briefs, including the Becket Fund and the American Civil Liberties Union. The DOJ wrote that the city’s flag-flying program “is not government speech” at all.
The DOJ brief noted that the Supreme Court has “emphasized that the government cannot transform private speech into government speech merely by approving private messages expressed in a forum for private speakers.” Most importantly for free speech and religious liberty, the DOJ brief argues that while some reasonable content- and speaker-based restrictions are allowed in some of these forums, viewpoint discrimination is prohibited. DOJ asserted:
The Court has long held that denying access to an otherwise-available forum simply because of the religious nature of the speech is viewpoint discrimination.
DOJ’s position is rooted in a Supreme Court ruling in Lamb’s Chapel v. Center Moiriches Union Free School District, 508 U.S. 384 (1993) and Rosenberger v. Rector & Visitors of University of Virginia, 515 U.S. 819 (1995). In Lamb’s Chapel, the Court upheld the right of a Christian organization to conduct a series of films and discussions “from a Christian perspective” after hours at a public school otherwise open to many other civic and community organizations. And in Rosenberger, the Court held that the University of Virginia unconstitutionally discriminated based on viewpoint when it excluded religious activities from otherwise available funding.
Bottom line: The Justices of the Supreme Court should reaffirm that when government treats religious speakers less favorably than nonreligious speakers, it is engaging in impermissible viewpoint discrimination.
Becket Law recently released its third Religious Freedom Index, 21 questions put to a nationally representative group of 1,000 American adults. The results portray a nation that values the contributions of religious organizations to the well-being of the United States.
The poll also shows that Americans strongly support a level playing field for faith-based organizations, wanting the government to partner with them on fair and equal terms. Becket’s Religious Freedom Index demonstrates a widespread desire to hear faith-based opinions and worldviews, important to many Americans in these disruptive times.
Religious Freedom: Overall, backing for religious freedom increased in this year’s index, pushing it to a new high of 68 percent on a 0-100 scale.
Level Playing Field: More Americans than ever before responded that they believe religious organizations should be just as eligible to receive government funding as non-religious organizations – a six-point increase from the previous year to a high of 71 percent.
Value of Free Speech: 62 percent of respondents believe people of faith should be free to voice their religiously based opinions in public, even on controversial topics.
Parents and Children: 63 percent of respondents said that parents are the primary educators of their children and should have the final say in what their children are taught.
Closures: In some parts of the United States during the pandemic, there was an imbalance between how local and state governments treated many commercial and cultural activities and religious ones when it came to pandemic management and closures. In Becket’s poll, a majority said that funerals and religious services should be considered essential activities.
Becket’s Religious Liberty Index demonstrates that Americans have a growing appreciation of the role of religious organizations and religious liberty. Most Americans still agree with Tocqueville’s adage: “The safeguard of morality is religion, and morality is the best security of law and the surest pledge of freedom.”
The Filming of George Floyd’s Murder Would Have Been Illegal in Boston
James O’Keefe and his Project Veritas brand of gotcha reporting has twice now made him the test case of the boundaries of First Amendment protection of journalists. “You might love, hate or simply want to ignore Project Veritas,” said Gene Schaerr, Protect The 1st general counsel. “But their rights are everyone’s rights.”
The recent raid on O’Keffe’s home by the FBI and the confiscation of his cellphone provoked critical comment from the American Civil Liberties Union and New York Times media columnist Ben Smith. Less noticed was the denial today by the U.S. Supreme Court of Project Veritas Action Fund v. Rollins, in which that conservative activist group sought to overturn a ruling from the U.S. Court of Appeals for the First Circuit.
Unlike many other federal courts, the First Circuit ignored the threat to the First Amendment posed by a Massachusetts law that makes it illegal for anyone but law enforcement officers to record others without their permission.
In our amicus brief, Protect The 1st noted a long history of the public interest being served by the exposure of misdeeds, from the undercover reporting of Nellie Bly in 1887 to 18-year-old Darnella Frazier, who received a Pulitzer Prize citation for recording the murder of George Floyd by a policeman in Minneapolis in 2020.
Protect The 1st will continue to defend the standard in many parts of the country that affirms Americans’ right to record. We will continue to look for other opportunities to encourage the Court to resolve the important legal issues presented in Project Veritas’ petition.
Protect the First Foundation Files Brief In Boston Flagpole Case: “The Courts Have Turned the First Amendment on Its Head”
When the U.S. Supreme Court hears oral arguments in Shurtleff v. City of Boston on Jan. 18, 2022, it will examine a case in which Boston city officials allowed hundreds of groups that applied to fly a flag on a city flagpole to do so – with one exception.
Boston had designated a flagpole near City Hall Plaza to be available for private persons and groups for events. From 2005 to 2017, Boston allowed 284 flag raising events, from a gay pride flag to a Bunker Hill Flag, with no prior review of their messages. No applications were rejected. Then came Camp Constitution, a group whose mission is to “enhance understanding of the country’s Judeo-Christian heritage, the American heritage of courage and ingenuity, the genius of the United States Constitution, and free enterprise.” The group wanted to host an event celebrating the ”historical civic and social contributions of the Christian community to the City of Boston, the Commonwealth of Massachusetts, religious tolerance, the Rule of Law, and the U.S. Constitution,” by hosting an event at Boston’s City Hall Plaza that would raise “the Christian Flag,” which displays a red Latin cross.
But the Boston city government refused to grant permission, claiming it had a policy of not allowing religious flags to be raised on city-owned flag poles—even though many of the flags raised previously, including Boston’s own flag, display religious words or imagery. Harold Shurtleff and other members of his Camp Constitution group sued. The U.S. Court of Appeals for the First Circuit upheld the city’s decision, holding that when private groups and individuals raised flags on City Hall Plaza, it was Boston, not those groups or individuals, that did the speaking. That meant, in the First Circuit’s eyes, that Camp Constitution’s request wasn’t protected by the First Amendment.
In an amicus brief filed in support of Shurtleff and Camp Constitution, Protect the First Foundation demonstrates that: “By reducing the amount of protection speech receives as governmental regulation of that speech increases, the courts have turned the First Amendment on its head.” Protect The 1st shows that the First Circuit Court erred in defining the flagpole as “government speech.” If that ruling is correct, then the court is forcing the Boston taxpayers to endorse all the messages contained in the 284 flags that were flown. It is easy to see how obnoxious that doctrine would be in a free society:
If in 2020 the White House had hoisted a flag proclaiming “Trump 2020—Keep America Great,” it would have been clear that the government was using taxpayer-funded property to express a political message. Likewise, the Commonwealth of Virginia surely could not use state funds to erect a giant billboard reading, “Virginia Says Keep Our State Blue!”
Such efforts have the self-evident goal of using the compelled funding and machinery of the State to manipulate public opinion.
Protect The 1st’ Foundation quoted Thomas Jefferson, who wrote that “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhor[s] is sinful and tyrannical.” If the First Circuit is correct, then Boston is forcing taxpayers to pay for government speech that they may or may not agree with.
In fact, as the brief asserts, the City of Boston was merely allowing private speech on a public venue. “If private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints.” And because the flag raisings are not government speech, Boston can’t choose to exclude disfavored viewpoints—including religious viewpoints.
But that’s exactly what Boston did, which is why the Supreme Court should reverse the First Circuit.