Jack Phillips, the owner of Masterpiece Cakeshop, who famously refused to bake a cake for a same-sex wedding in 2012 and sparked a lawsuit that led all the way to the U.S. Supreme Court, is back in court again. This time, he is being sued for refusing to bake a birthday cake celebrating a gender transition.
On January 26, the Colorado Court of Appeals ruled that Jack Phillips violated Autumn Scardina's rights by denying her service because of her identity as a transgender woman. The Court of Appeals affirmed a lower trial court decision by holding that Phillips violated state anti-discrimination law by not making a cake to celebrate a gender transition. This most recent decision mirrors the trajectory of Masterpiece Cakeshop v. Colorado Civil Rights Commission, which Phillips also lost in both the trial court and the Court of Appeals. When the Supreme Court heard it, the Justices issued a 7-2 opinion that found for Phillips, though on the narrow grounds that the state commission had not employed religious neutrality.
In this latest case, the court in Colorado held that refusing “the act of baking a pink cake with blue frosting,” two of the colors of the Transgender Pride flag, “does not constitute protected speech under the First Amendment.”
Scardina attempted to order her cake on the same day in 2017 that the Supreme Court announced it would hear Phillips’ appeal in the wedding cake case. Scardina first filed a complaint against Phillips with the state and the civil rights commission, which found probable cause that Phillips had discriminated against her. During the trial, Scardina testified that she wanted to “challenge the veracity” of Phillips’ statements that he would serve LGBTQ customers. In response, Phillips filed a federal lawsuit against Colorado, accusing it of a “crusade to crush” him.
In March 2019, lawyers for the state and Phillips agreed to drop both cases under a settlement. Scardina was not a party to that settlement and chose to pursue the lawsuit against Phillips and Masterpiece on her own.
In its most recent decision, the Court of Appeals found that Colorado’s anti-discrimination law – which makes it illegal to refuse to provide services to people based on protected characteristics like race, religion, or sexual orientation – does not violate the right of business owners to practice or express their religion. Phillips and his lawyers have declared their intent to appeal.
It would be wrong to allow denial of services against Americans based on sexual orientation. That rule, however, should grant reasonable and narrow exceptions for services that engage the artistic and creative talents of a photographer, a portrait painter, a website designer, or a craftsman who makes cakes with messages.
Autonomy over what a person produces, including the message conveyed by the product, are a critical component of free expression. As with the pending 303 Creative case before the Supreme Court, the key issue is whether people in an expressive business have the right to decline to engage their creativity in the service of a message that violates their cherished religious beliefs.
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Along these lines, we’d like to report some good news at Yale Law School. Last March, a progressive atheist and a conservative Christian were harassed by an ugly protest over a – get this – panel discussion about free speech. Kristen Waggoner, who heads Alliance Defending Freedom, a conservative Christian advocacy group, had her presentation repeatedly interrupted by more than 100 protestors.
The reputational damage to the school was intense, with federal Judge James Ho in September announcing he would not consider Yale law graduates for clerkships. In September, Eugene Volokh, Protect The 1st Senior Legal Advisor, suggested that Yale could undo much of the damage to its reputation by inviting Waggoner back to speak “and not have to leave the building with a police escort – or even leave having had a pleasant experience.”
If so, “that would go a long way toward showing an improved intellectual environment at Yale.”
In late January, Waggoner was invited to return to Yale, along with the ever-engaging Nadine Strossen, former ACLU president and professor at New York Law School, and Robert Post of Yale Law. Volokh reports that the discussion went “swimmingly.”
Much of the discussion centered around Waggoner’s appearance before the U.S. Supreme Court to discuss none other than 303 Creative. Volokh observes that this case, whichever side you take, is “one of the most interesting, important, and high-profile cases of the current Term, so it’s obvious why a law student group might want to host an event with one of the lawyers who argued it.”
Commenting on this favorable development, Gene Schaerr, Protect The 1st general counsel and a graduate of Yale Law School, observed: “It is heartening to see Yale Law return to collegial debate and discussion.”
And it will be fascinating to observe how courts – including the Supreme Court in 303 Creative – parse the rights and responsibilities of people whose mode of work is expressive.
Senator Tim Scott of South Carolina a few days ago fired up a student rally for National School Choice Week, strongly stressing the value of a quality education that private school choice provides. The enthusiasm for the transformational power of education freedom was palpable among the Opportunity Scholarship students from 10 Washington, D.C. public charter and private schools.
Senator Scott himself is a testament to what an education and inspiring educators can do for students across the country. He reflected on his education growing up in a poor, single-parent household (15:00 mark): “When you’re living in poverty, you move a lot sometimes. My mother was working sixteen hours a day, trying to keep the lights on and food on the table. And it didn't always work out. We didn’t always have the lights on. You come home sometimes, you hit the switch, it didn’t work. Tough times.”
Understandably, Tim Scott struggled with school at first. He attended four elementary schools by the 4th grade. As he went from middle school to high school, “things got worse.” This future senator failed four classes in high school including, ironically, high school civics.
What turned Tim Scott’s life around was that “he had a mom who stuck with him and met a mentor that showed him the wisdom of conservative principles.” Through their belief and his own determination, Tim Scott got his grades back on track, graduated from Charleston Southern University, and eventually built his own successful small business. For millions of children today, the only way to obtain such a personal transformation is through the quality afforded by school choice.
Senator Scott said:
“I understand the value of a good education. I’ve said it several times, the closest thing to magic in America is a good education.”
We believe, as does Sen. Scott, that parents should be able to freely choose a school that fits their child’s needs and select an education that upholds their values. Therefore, Protect The 1st supports the ability of parents to choose among a variety of educational settings – including charter schools, private academies, and religious schools – so that their children can enjoy the benefits of quality education. The need for a private school choice is part of a movement that Sen. Scott identifies as the “civil rights issue of our time.”
Matthew 25:35: I was hungry, and you gave me something to eat. I was thirsty, and you gave me something to drink. I was a stranger, and you took me into your home.
For two millennia, Christians have seen charitable service as a form of worship, as do Jews, Muslims, and people of other faiths. They have scripture and centuries of tradition on their side. Too bad they don’t have a black robe and a gavel.
An appellate court in Wisconsin recently ruled that a Catholic charity, which has provided aid to the disabled, the elderly, and the poor for over one hundred years, no longer qualifies for religious liberty-based legal exemptions. The court held that the express purpose of the charity as a religious institution does not protect it from having to contribute money to the state’s unemployment system, instead of to a church-run system.
This ruling is of far greater significance than the immediate issue: it opens a fresh legal vulnerability for the free practice of religion. If upheld, this ruling would subject religious-based charities to all manner of state agency rules regarding church governance that would amount to government regulation of belief.
This case involves the Catholic Charities Bureau, the social ministry arm of the Diocese of Superior, Wisconsin. The charity covers sixteen counties, roughly a quarter of the state. The nonprofit offers in-home health care, housing, childcare services, and other resources to those in need as a way to demonstrate the spirit of the Gospels.
The Wisconsin appellate court doesn’t grasp how this organization can be both charitable and religious. It ruled an organization is “operated primarily for religious purposes” only if its professed motive and activities are based on explicit proselytizing. Although the charity is run by Catholics compelled by scripture to aid the needy, the court found that the primary purpose of the bureau is charitable work and not proselytization. Thus, the court reasoned, the charity is not operated “for religious purposes.”
The Catholic Charities Bureau is challenging the court’s ruling under the First Amendment’s Establishment Clause, appealing the decision to the Wisconsin Supreme Court. The appeal notes that the appellate court’s ruling would enable the government to “finely parse all the activities of religious bodies in the State and decide whether those activities are ‘inherently’ or ‘primarily’ religious.” Quite right – no activity violates the Establishment Clause more than one in which the government decides which religious practices qualify as religious, and hence protected, and which do not. After all, the Supreme Court has recognized that “[t]he clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” If courts really can say that proselyting activities are worthy of legal protection, but charitable activities categorically aren’t, then inevitably some religious groups – here, Catholics – are going to find that their beliefs, though inherently religious, are less protected than the religious beliefs of others. The Bureau thus rightly informs the court that the ruling, at bottom, infringes on the charity’s ability to freely exercise its religion.
Eric Rassbach of the Becket Fund for Religious Liberty says that the outcome of this case could have huge ramifications for religious establishments. The ruling implicates legal protections of other organizations that are affiliated with religious institutions, such as parochial K-12 schools or religious colleges and universities.
The devout of many faiths believe that reaching out to help people in the community is, perhaps, the most effective form of proselytizing. Such a narrow definition of religious organization would degrade the First Amendment rights of thousands of institutions and millions of American faithful around the country.
Protect The 1st will report further developments in this case.
The media is aflame with stories about the mishandling of classified material by President Joe Biden and former President Donald Trump, with partisans arguing why one or the other is in greater breach of the law. When we look beyond the partisan wrangling, these stories point to the underlying problem of the Espionage Act. Like a deep trawl scraping the ocean floor, the Espionage Act is broad enough to catch almost everything, including the wrong fish.
The Espionage Act is the worst kind of law: as vague as it is broad. It weaponizes the tendency of government to put a “classified” stamp on even anodyne material. “No one is ever punished for overclassifying information, yet plenty of people go to prison for disclosing information to journalists that never should have been classified to begin [with],” Trevor Timm, executive director of the Freedom of the Press Foundation, wrote in The Guardian. “Even efforts to reform the secrecy system end up being classified themselves.”
The Espionage Act, combined with overclassification, are menaces to the First Amendment. They inhibit the ability of Americans to know what our government is up to, and for whistleblowers to expose wrongdoing hidden behind a classified stamp.
President Obama, worried about this tendency of the government to overclassification, in 2009 issued a remedy: Executive Order 13526. This order was meant to stem the tide of classification and prevent government agents from classifying documents “for self-serving reasons or simply to avoid embarrassment.” In the wake of President Obama’s executive order to curb overclassification, the number of U.S. classified government documents rose from almost 55 million to 77.5 million documents in five years. Less than one percent of federal money spent on the classification system is spent on de-classification today.
“Tens or hundreds of millions of documents are classified per year,” Timm wrote. “A tiny fraction will ever see the light of day, despite the fact the vast majority never should have been given the ‘secret’ stamp in the first place.”
Responses to FOIA requests filed by civil liberties organizations reveal that documents are classified when they shouldn’t have been. Documents are classified at the wrong level. Information is classified for a longer duration than necessary. The government is self-forgiving, allowing itself to be free to make these mistakes, but an American accused under the Espionage Act is apt to get rough treatment and a good stretch in a federal prison.
We should remember that the 1917 Espionage Act was the centerpiece of the police state erected by President Woodrow Wilson. Socialist Charles T. Schenck went to prison for violating that law. His crime? He passed out a leaflet opposing America’s military draft during World War One. These outrages against free speech paved the way for the even more draconian anti-speech amendment, the Sedition Act (which, thankfully, Congress repealed).
Justice Oliver Wendell Holmes Jr., writing for the majority in the Schenck case, found an exception to the First Amendment. Speech that “creates a clear and present danger” may be prohibited and speakers prosecuted. The blacking out of a wide swath of government activities from public view, and criminalizing discussion about those activities, remains a disturbing exception to the First Amendment.
Whatever your opinions concerning the current and former presidents, the breadth of this law in enforcing an overclassification system run amok is a sure sign that reform is needed. Perhaps it will take two presidents of both parties getting snared in the Espionage Act’s net to spur Congress to pass limits on the classification system, curb the secret state, and address the judicial test that treats some speech as a “clear and present danger.”
Former U.S. Sen. Rick Santorum and Protect The 1st Tell Supreme Court that Curtailing Section 230 Would Harm Americans’ First Amendment Rights
Former U.S. Senator Rick Santorum today joined with Protect The 1st to urge the U.S. Supreme Court to reject the petitioners’ argument in Gonzalez v. Google that the algorithmic recommendations of internet-based platforms should make them liable for users’ acts.
Santorum and Protect The 1st told the Court that curtailing Section 230 “would cripple the free speech and association that the internet currently fosters.” As a senator, Santorum had cast a vote for Section 230 to send the bill to President Bill Clinton’s desk for signature in 1996.
The Protect The 1st amicus brief informed the Court:
The brief described for the Court the harm to society that would occur if the Court were to disregard Section 230’s inclusion of First Amendment-protected editorial judgments. The brief tells the Court:
And there is no need for the Supreme Court to rewrite Section 230: As amici explained, Congress can choose to amend Section 230 if new challenges necessitate a change in policy. For example, Congress recently eliminated Section 230 immunity when it conflicts with sex trafficking laws, and Congress is currently debating a variety of bills that would address specific concerns about algorithm-based recommendations.
The Protect The 1st’s brief states: “The judiciary is never authorized to interpret statutes more narrowly than Congress wrote them, but it is especially inappropriate to do so when Congress is already considering whether and how to amend its own law.”
This Protect The 1st amicus brief answers the question before the U.S. Supreme Court in Gonzalez v. Google: “Does Section 230(c)(1) of the Communications Decency Act immunize interactive computer services when they make targeted recommendations of information provided by another information content provider?”
Th case pending before the Court centers around the murder of Nohemi Gonzalez, a 23-year-old American who was killed in a terrorist attack in Paris in 2015. A day after this atrocity, the ISIS foreign terrorist organization claimed responsibility by issuing a written statement and releasing a YouTube video that attempted to glorify its actions. Gonzalez’s father sued Google, Twitter, and Facebook, claiming that social media algorithms that suggest content to users based on their viewing history makes these companies complicit in aiding and abetting international terrorism.
No evidence has been presented that these services played an active role in the attack in which Ms. Gonzalez lost her life. A district court granted Google’s motion to dismiss the claim based on Section 230 of the Communications Decency Act, a measure that immunizes social media companies from content posted by users. The U.S. Court of Appeals for the Ninth Circuit affirmed the lower court’s ruling.
The Supreme Court is scheduled to hear oral arguments Feb. 21.
CLICK HERE FOR THE AMICUS BRIEF
A federal district judge in Oregon late Thursday dismissed a lawsuit filed by a group of students who have soured on the religious colleges they attend (or have attended), seeking to overturn the religious exemption that Congress included in federal law to protect the right of religious colleges and universities to adhere to the tenets of their faith.
Title IX of the Education Amendments of 1972 prohibits educational programs or activities receiving federal funds from excluding, denying benefits to, or subjecting to discrimination any person on the basis of sex. Congress, however, included a narrow exception to Title IX when an educational institution “is controlled by a religious organization” holding “religious tenets.”
Forty people who applied to, attended, or currently attend religious colleges and universities filed suit against the U.S. Department of Education, alleging that religious schools discriminate against them on the basis of their sexual orientation or gender identity. The plaintiffs alleged that the “religious exemption to Title IX exerts a chilling effect” on their free exercise of religion, speech, assembly, and association.
District Judge Ann Aiken noted that the Supreme Court has upheld the obvious principle that churches “advance religion, which is their very purpose.” Nor did Judge Aiken buy the plaintiffs’ argument that the religious exemption somehow violates the Religious Freedom Restoration Act (RFRA). The judge noted, “the text is clear that government granting exemptions does not constitute a violation …”
In short, Judge Aiken ruled “the balance of equities” fails to tip in the favor of the plaintiffs.
“This ruling is a big win for the rights of religious universities and colleges,” said Gene Schaerr, general counsel of Protect The 1st. “It upholds the First Amendment rights of these schools to advocate the tenets of their faiths, and to freely associate on that basis.”
Last year, Attorney General Merrick Garland announced an investigation into whether the Phoenix Police Department “engages in a pattern or practice of violations of the Constitution or federal law.”
As if to say, “I resemble that remark,” a Phoenix police officer was recently revealed by local TV news as having handcuffed a Wall Street Journal reporter doing man-on-the-street interviews with customers in front of a bank. “No journalist should ever be detained simply for exercising their First Amendment rights,” The Journal reacted to this event in a public statement.
The reporter, Dion Rabouin, was approached by bank executives but was not asked to leave the premises. When confronted by a Phoenix Police officer, Rabouin offered to leave – which was appropriate, given that he was on private property. But Rabouin was handcuffed nevertheless. No less important, a bystander who recorded the incident on a video phone was ordered to stop by the police officer.
“You wanna get arrested as well?” the police officer asked.
There are several important takeaways from this incident. First, the officer had no authority to tell the bystander to quit filming.
Last summer, we reported on Arizona’s space-squeezer law on citizens’ right to record the police. The law was an Arizona statute that allowed police to charge citizens who record them within eight feet, or who don’t stop recording when told to do so by an officer, with a misdemeanor. News organizations protested that this prohibition would easily dragoon protestors and news photographers on the move in an active protest.
But later in the year, a federal judge blocked the law, and the Arizona legislature declined to defend it. The arrest of the reporter that was recorded by the bystander demonstrates the need to respect citizens’ right to record.
Second, this incident is Exhibit A in a pattern identified by the Reporters Committee for Freedom of the Press that there is an “alarming number of incidents we’ve seen over the last several years where police have detained, arrested, or assaulted journalists who were doing their jobs.” Witness the treatment of local Laredo, Texas, news blogger Priscilla Villarreal (aka “La Gordiloca”), who was arrested and humiliated in a police station for “misuse of official information.” Villarreal did beat the rap in court, but she did not beat the ride, enduring jeers and insults as she went through the booking process.
The Freedom of the Press Association recently reported that two North Carolina reporters who were filming an eviction of people from a homeless encampment were arrested after police instructed the crowd to disperse. Police seized one of the reporters’ phone, even though she identified herself as a reporter.
“Regardless of the outcome, the fact that these charges were even filed, let alone brought to trial, is an affront to press freedoms, and everyone involved should be ashamed,” wrote Seth Stern of the Freedom of the Press Association. “The First Amendment requires the government to let reporters gather news firsthand – not rely on self-serving spin from official sources. Courts tolerate restrictions on reporters’ access to public land only in exceptional circumstances, like serious public safety risks, and then restrictions must be narrow enough to avoid unduly interfering with newsgathering.”
In the DOJ’s Arizona investigation, the department says it is interested in investigating the Phoenix PD for violating “conduct protected by the First Amendment.” The Phoenix New Times – a long-time critic and bête noir of the local police – reports that DOJ may be interested in exploring overly aggressive use of rubber bullets and tear-gas against protestors, as well as the alleged targeting of activists for arrest and smearing them as gang members.
These concerns should lead Congress to renew and pass the PRESS Act, which would bar prosecutors, except in exigent circumstances, from requiring the revelation of the notes and sources of journalists in court – as 49 states already do. While this law curbs the actions of prosecutors, not police, and does so in court, not on the streets, the impulse of authorities to suppress the press is the same. So is the need to protect one of the most sacred guarantees of the First Amendment: freedom of the press.
Protect The First Foundation Files Brief Before the Ninth Circuit Court of Appeals Supporting Apache Stronghold in Oak Flat Case
The Protect the First Foundation joined the Jewish Coalition for Religious Liberty in an amicus brief filed today in the U.S. Ninth Circuit Court of Appeals to prevent the destruction of the sacred land of the Apache Stronghold of Arizona, “because the religious liberties of all rise and fall together.”
“This is a critical case for all people and communities of faith because it raises a fundamental question of what constitutes a ‘substantial burden’ on the ‘exercise of religion’ under the Religious Freedom Restoration Act (RFRA)” the brief states.
A district court had previously found that, to the Western Apache, Oak Flat is “a ‘direct corridor’ to the Creator’s Spirit.” The Oak Flat parcel of the Tonto National Forest has for centuries been such a sacred place to the Apache. If a government-approved transaction is allowed, Oak Flat will be turned over to a foreign mining consortium, Resolution Copper, to be transformed into a crater as long as the Washington Mall and as deep as two Washington Monuments.
A 2-1 split on a three-judge panel on the Ninth Circuit had ruled in June against the Apache, finding that the destruction of Oak Flat would not amount to a “substantial burden” on the practice of religion under RFRA. In September, however, the court made the rare move to rehear the case before an en banc hearing – meaning that it will be before 11 randomly selected Ninth Circuit judges. This happens in fewer than 0.5 percent of cases.
“[T]he panel erroneously concluded that the Apache will not be ‘substantially burdened’ as defined by RFRA,” Protect the First Foundation’s brief states. “Since RFRA does not define ‘substantial burden,’ this Court should follow the Supreme Court’s guidance and apply the ordinary or natural meaning of that term.” The brief also quotes Justice Neil Gorsuch from his days as a judge on the 10th Circuit Court of Appeals that whenever the government “prevents the plaintiff from participating in [a religious] activity,” and gives the plaintiff no “degree of choice in the matter,” that action “easily” imposes a substantial burden on religious exercise.
The brief demonstrates that the prior ruling erred in narrowly applying a previous Ninth Circuit case, Navajo Nation v. U.S. Forest Service, despite it having more expansive permissible readings. “But, if true that Navajo Nation required the result reached here, then this Court should overturn it because it would mean Navajo Nation has adopted an erroneous and unduly narrow understanding of what a substantial burden is – an understanding that cannot be squared with the text or purpose of RFRA or Supreme Court precedent.”
The appellants also noted that the panel defended its conclusion on the grounds that the Supreme Court in Lyng v. Northwest Indian Cemetery (1988) found no valid free exercise claim. But that case preceded the passage of RFRA and its protections by decades. Moreover, in Lyng, the Court allowed the development of government land around religious sites. It did not propose to destroy them.
“It follows that a destroyed Oak Flat would devastate the Western Apache much like an obliterated Vatican for Catholics, a demolished Kaaba (in Mecca) for Muslims, or a dismantled temple for members of the Church of Jesus Christ of Latter-day Saints,” the brief declares. “But the burden imposed on the Western Apache would be worse still than even the destruction of religious buildings, because their religion is rooted in the land itself, not just buildings that have been built there.”
The brief quoted a district court: “Resolution Copper’s planned mining activity on the land will close off a portal to the Creator forever and will completely devastate the Western Apache’s spiritual lifeblood.”
PT1st will continue to monitor this case as it is decided by the Ninth Circuit.
In just our second year as a civil liberties organization, Protect The 1st enjoyed great success in advancing and protecting the principles and spirit of the First Amendment in Congress, the courts, and the media.
The Press Act
In 2022, Protect The 1st supported a bill, introduced by Rep. Jamie Raskin of Maryland, to bring the federal government up to the same standard as 49 states by protecting journalists’ notes and sources in court proceedings.
Persistent advocacy of the Press Act by Protect The 1st Senior Policy Advisors Rick Boucher and Bob Goodlatte, both former House Members from Virginia, was instrumental in securing passage of the bill in the House and advancing it with bipartisan support in the Senate. “The PRESS Act passed unanimously because courts continue to hold journalists in contempt and even jail them for refusing to reveal their confidential sources,” said Rick Boucher. “The House made a strong statement today that this is not acceptable.”
The free exercise of religion is one of the principal guarantees of the First Amendment. Thus, every religious group has a stake in the ability of the people of the Apache Stronghold to continue observing their ancestral religion at their sacred site in Oak Flat, a large parcel of land in the Tonto National Forest in Arizona. As a result of a midnight deal in Congress, that land is slated to be transferred to a foreign mining consortium to mine copper. That operation would transform the Apache’s sacred land into a crater as long as the Washington Mall and as deep as two Washington Monuments.
“Imagine doing that to any other community or religious group — to pulverize St. Patrick’s Cathedral in New York City, or the Touro Synagogue in Rhode Island — and not only destroy an irreplaceable site of worship but leave behind an ugly and enormous gash in the earth,” Rick Boucher wrote in an Earth Day op-ed in The Hill.
In this and many other ways, Protect The 1st strongly advocated on behalf of the Apache, including advocacy on Capitol Hill and in amicus briefs in the courts.
For most of the year, Oak Flat seemed like a lost cause. The Apache lost their case in the Ninth Circuit Court of Appeals, only to have a rare decision by that same court to revisit its ruling later in the year. While the court ponders the religious liberty implications of the destruction of land sacred to these Americans’ religion, Protect The 1st will take the opportunity to press Congress to pass the Save Oak Flat Act.
Religious liberty scored a touchdown when the U.S. Supreme Court, in a 6-3 opinion, upheld the rights of a coach to pray after games. In its opinion, the majority adopted a view that is almost a verbatim quote from the amicus brief Protect The 1st filed in the case of the “praying coach.”
Protect The 1st in the Courts
Protect The 1st filed a brief in FEC v. Cruz, a case asking the U.S. Supreme Court to invalidate limits on the amount candidates for federal office can recover from their personal donation to their campaigns. In the majority opinion, Chief Justice John Roberts cited Protect The 1st’s brief on removing limits on the right of candidates to personally support their campaigns and their political speech.
Protect The 1st petitioned the U.S. Supreme Court to determine if local authorities can regulate speech on public sidewalks, testing the scope of the public forum doctrine in Keister v. Bell. This petition was selected as Petition of the Week by the respected SCOTUSBlog. Our petition also drew the support of multiple First Amendment organizations.
Protect The 1st filed multiple briefs asking the U.S. Supreme Court to clarify the rights of public-sector employees to opt-out of being forced to pay for political speech through compelled membership in unions. Protect The 1st ended the year with a filing, Kurk v. LRCEA, that challenges such compulsion and violation of workers’ First Amendment rights.
In 2022, Empirical SCOTUS ranked Protect The 1st sixth in the nation in filing amicus briefs. Only five organizations, which included the U.S. government and the U.S. Chamber of Commerce, filed more briefs.
Much of the logic and actual language offered by Protect The 1st appeared not only in FEC v. Cruz, but in four important religious liberty cases Ramirez v. Collier, Carson v. Makin, Kennedy v. Bremerton School District, and Shurtleff v. Boston. In each case, Protect The 1st anticipated the Supreme Court majority’s reaction against sudden and dramatic curtailments of the freedom of speech and religion.
In all these ways – from the court of public opinion, to the U.S. Supreme Court, to Capitol Hill – Protect The 1st is building on our early successes to support the guarantees of free speech, a free press, and the free exercise of religion.
On December 21st, the faculty senate of the Massachusetts Institute of Technology voted to approve a “Free Expression Statement,” defending speech and expression at the university. The statement asserts that “learning from a diversity of viewpoints, and from the deliberation, debate, and dissent that accompany them, are essential ingredients of academic excellence.”
The Free Expression Statement was approved by a vote of 98 to 52, a sizable margin showing that respect for free expression is alive and well at MIT. Not only does the statement enshrine respect for free speech, viewpoint diversity, and debate as cornerstones of academic integrity, but so too does it defend the right to speech that may hurt or offend. “We cannot prohibit speech that some experience as offensive or injurious,” the statement reads.
The Free Expression Statement is the culmination of a year’s work by MIT’s Ad Hoc Working Group on Free Expression, and was incited by last year’s invitation for, and subsequent cancellation of, a speech by geophysicist Dorian Abbot. Abbot was invited to present 2021’s annual John Carlson Lecture, which “communicates exciting new results in climate science to the general public.” Protestors led a successful campaign to disinvite Abbot because of his critical views on the university’s Diversity, Equity, and Inclusion initiatives.
That the Free Expression Statement was adopted by the faculty senate goes a long way towards rectifying the mistakes of last year, but it still has further to go. “[MIT] President Kornbluth can set a strong example by endorsing the free expression statement herself, as well as by considering and implementing the thoughtful recommendations of the free expression working group,” said Peter Bonilla, Executive Director for the MIT Free Speech Alliance.
PT1 strongly supports the passage of the Free Expression Statement by the faculty senate at MIT. We look forward to further efforts to preserve and protect free speech at MIT and at universities across the country.
On December 29th, Judge John Sinatra, Jr. of the U.S. District Court for the Western District of New York took aim at New York’s Concealed Carry Improvement Act. Recently, the state attempted to pass sweeping legislation that would have banned gun owners from carrying a firearm in church, even by those who possess a legal permit. Such a ban would have forced New York citizens to make an impossible choice between sacrificing their First or Second Amendment rights.
Michael Spencer, a pastor at His Tabernacle Family Church, filed suit in November arguing that the law was unconstitutional. Pastor Spencer possesses a concealed carry permit and regularly carries a firearm at his church consistent with his “view of the Christian scriptures and what they say about a pastor’s role” in defending his congregation. Pastor Spencer also allows licensed members of his congregation to carry as well.
New York isn’t the only state to target citizens’ First and Second Amendment rights. Earlier this year, PT1st reported on the consequences of California’s AB 2571, a law prohibiting the marketing of firearms or related products in a manner that “reasonably appears to be attractive to minors.” While the law sounds sensible, its broad sweep has put innocent youth sporting groups in its crosshairs by blocking them from advertising to interested youth. The law curtails such a tremendous amount of speech that it could mean the death of some sports and sporting groups entirely.
In his opinion, Judge Sinatra struck two birds with one stone, ruling that the CCIA violates both the First and Second Amendments of the Constitution. He writes, “Ample Supreme Court precedent addressing the individual’s freedoms under the First and Second Amendments to the Constitution dictate that New York’s new place of worship exclusion is unconstitutional.” He further adds, “the Nation’s history does not countenance such an incursion into the right to keep and bear arms across all houses of worship across the state. The right to self-defense is no less important and no less recognized at these places. The Constitution requires that individuals be permitted to use handguns for the core lawful purpose of self-defense.”
PT1 commends Judge Sinatra on his boldly articulated defense of our fundamental Constitutional rights. We look forward to further developments in this case.
Protect The 1st Files Amicus Brief in Kurk v. LRCEA Challenging State Forced Association Statute
On December 28th, the Protect The 1st Foundation filed an amicus brief in the upcoming case Kristine Kurk v. Los Rios Classified Employees Association. The case is currently being heard in the United States Court of Appeals for the Ninth Circuit and concerns whether the First Amendment protects a public employee’s right to resign union membership at will.
Twenty-five years ago, Kristine Kurk signed a form allowing the Los Rios Community College District to deduct fees from her salary and send them to her union, the Los Rios Classified Employees Association. Recently, when Kurk attempted to resign her membership, the Union used a California statute’s authorization of “organizational security agreements” to force Kurk to remain a full member, including requiring her government employer to seize money from her paycheck and give it to the union.
Requiring Kurk to remain a member would mean her dues would be used to support political candidates and legislation that she may have no interest in supporting. In essence, Kurk’s forced membership is akin to forced expression and thus violates the First Amendment.
As stated in our amicus brief, “The Ninth Circuit and other courts of appeals have consistently tried to evade the First Amendment’s requirements as articulated in Janus. In doing so, they have blessed ‘maintenance-of-membership’ statutes that burden speech and association at the core of the First Amendment’s protections. Compelled speech and association, whether it lasts a few months or, as in this case, a few years, raises the specter of a First Amendment violation. This Court should grant the petition to affirm Janus’s underlying principle that states and unions may not conspire to compel speech or association on matters of public concern.”
For reasons explained at length in our brief, Protect the 1st strongly believes that a law violates the First Amendment when it substantially impedes a union member’s ability to resign his or her membership in response to the union’s spending the member’s dues on speech with which the member disagrees.
On December 23rd, the U.S. Court of Appeals for the District of Columbia ruled that Sikhs who serve or wish to serve in the military may keep their beards, in a First Amendment win for religious minorities.
In Sikhism, adherents will often allow their hair to grow out naturally as a sign of respect for God’s creation; however, each military branch maintains strict regulations on personal grooming, which effectively bar pious Sikhs from serving, even though exceptions have been made for medical conditions such as pseudofolliculitis barbae.
On Friday, the Court ruled in favor of three Sikh plaintiffs who were denied admission to basic training in the Marine Corps. The Court argued that denying Sikhs admission to basic training because of their religious beards violates the Religious Freedom Restoration Act (RFRA), which holds that the federal government cannot “substantially burden a person’s exercise of religion” unless such a burden is the least restrictive means of achieving a “compelling interest.”
The Court stressed the delicate balancing act at play: on the one hand, “no military organization can function without strict discipline and regulation that would be unacceptable in a civilian setting.” On the other hand, “the cost of military service has never entailed the complete surrender of all ‘basic rights[.]’” As Eric Baxter, lawyer to the plaintiffs, said, Sikhs “have served for a long time in militaries around the world, including in the United States, with all of their articles of faith in place.”
We commend the Court on an excellent decision. While we recognize that military service necessitates the sacrifice of some personal freedoms, we must work to ensure that as few as possible are relinquished. Americans do not shed their constitutional rights to the freedom of religion at military training ground gates.
The Alliance Defending Freedom scored a win in federal court recently when it represented a Christian student organization that says it was the target of viewpoint discrimination at the University of Nebraska-Lincoln (UNL).
Ratio Christi — Latin for “the reason of Christ” — is a multinational organization that “equips university students and faculty to give historical, philosophical, and scientific reasons for following Jesus Christ.” In 2021, the UNL chapter requested $1,500 in student activity funding to host Notre Dame Professor Robert Audi. Professor Audi, who previously taught at UNL for nearly thirty years, was slated to give a speech on whether it is rational to believe in God. The University rejected the request, stating that funding could not be provided for “speakers of a political and ideological nature."
The University also stated that Ratio Christi must invite a speaker to represent the opposite views of Audi to obtain the funding. In their suit, the ADF called this “viewpoint discriminatory on its face.” The policy set forward by the university “gives University officials unbridled discretion to engage in viewpoint discrimination by failing to set out narrow, objective, and definite standards for the disbursement of student fees for extracurricular speech.”
Thankfully, a federal court recently ruled in favor of the ADF and Ratio Christi. On December 15th, the ADF announced that the university accepted the court’s judgment and agreed to pay Ratio Christi $1,500. Additionally, the university also changed its student organization funding policy “to promote the availability of diverse viewpoints to UNL students […]”
Protect The 1st congratulates the Alliance Defending Freedom and Ratio Christi on their hard-fought legal victory. We also commend the University of Nebraska-Lincoln for accepting the Court’s judgment with magnanimity, and for taking necessary steps to ensure academic freedom and viewpoint diversity are upheld.
The fourth edition of the Becket Fund’s annual Religious Freedom Index found—among other things—an increase in respect for religious diversity. This is welcome news to champions of religious freedom everywhere.
The Religious Freedom Index regularly polls Americans to measure their “perspectives on core principles of religious freedom” and to provide “timely insights into pressing social and cultural questions.”
This year, public support for religious pluralism increased by four points, capping off a ten-point increase since 2020. Over 90% of survey respondents completely or mostly support:
The American public also widely supports protecting religious minorities. For example, the poll found nearly 90% of Americans support protecting Native American sacred sites located on federal land. Americans also support the rights of business owners to conduct their businesses in accordance with their religious beliefs, with little variation when the business owner is a member of a majority or minority religion.
Still, there is room for progress. The report found that while 85% of respondents correctly identified the freedom of speech as a First Amendment right, less than half could do the same for religious freedom. For this reason, the report states “advocates for religious freedom have an opportunity to educate the broader public on key constitutional rights.”
PT1 commends the Becket Fund for producing yet another rigorous and high-quality report. The data paint a promising picture of the health of religious freedom in the United States. First Amendment advocates should avail themselves of this valuable resource.
Even California AG Won’t “Defend the Validity” of California Law that Punishes Second Amendment Legal Challenges
Miller v. BontA
California Attorney General Rob Bonta said he “won’t defend the validity” of a new state law under which plaintiffs who test the constitutionality of California’s strict gun laws in court and lose must pay all attorney’s fees and costs. Such an imposition could easily be financially ruinous for plaintiffs and their lawyers alike.
“The refusal by the top law enforcement official of the nation’s largest state by population to stand by his state’s law is hardly a promising sign for that law’s survival in federal court,” said Erik Jaffe, policy director of Protect The 1st. “Heaping attorney’s fees and costs on plaintiffs concerned with a specific issue if they should lose in court – or win but fail to prevail on all their claims – is a way of denying disfavored groups access to courts. California’s approach is ultimately an attack on every Americans’ right to challenge a law – a smothering of dissent that violates the First Amendment.”
The California law requires, among other things, that plaintiffs who challenge the legality or constitutionality of gun restrictions must pay the defendant’s attorney's fees if they do not prevail on each and every claim in the lawsuit, even if they win on other claims and win their case as a whole.
California lawmakers modeled the bill after a Texas law that similarly penalizes plaintiffs challenging abortion restriction with ruinous liability for attorney’s fees, and which also allows citizens to sue anyone who helps provide an abortion. This is the provision mimicked by California with respect to guns. Shilpi Agarwal, legal director of the American Civil Liberties Union of Northern California, wrote: “We cannot stand silently by while our leaders escalate an ‘arms race’ of curtailing constitutional rights by setting up bounty-hunting schemes on politically sensitive issues.”
“In addition to the bounty clause, the California law is crafted to actively discourage and punish Second Amendment challenges to state laws,” Jaffe said. “This is grossly offensive to a free society and severely burdens the First Amendment right to petition the government in court for a redress of grievances from a potentially illegal or unconstitutional law. General Bonta was forced to recognize this fact given the principles he stated in a multi-state amicus brief against the Texas law and what he called its ‘one-sided attorney’s fee provision.’ That criticism of the attorney’s fee provision was surely correct, and it was the grossest hypocrisy for Gov. Newsom to propose and sign such an unconstitutional law and for General Bonta to even briefly seek to defend it. We applaud his current change of heart and hope Gov. Newsom reaches a similar epiphany and follows suit.”
Federal courts will have to step in to protect the Constitution if the Governor of California will not.
Federal Judge Roger Benitez, who is adjudicating Miller v. Bonta, recently took the first steps towards doing just that. In a pre-enforcement suit filed by the Firearms Policy Coalition, the Second Amendment Foundation, and other plaintiffs against the California law, the judge recognized that “while the provision entitles a prevailing party to be awarded attorney’s fees and costs, by the statute’s definition, a plaintiff cannot be a prevailing party.”
Judge Benitez disagreed with Attorney General Bonta’s argument that his unwillingness to enforce the fee-shifting provision means the case “is not ripe” and therefore not yet fit for trial.
“This Court takes a different view,” Judge Benitez wrote. “The recent commitment by the Office of the Attorney General is not unequivocal and it is not irrevocable. On the contrary, it evinces an intention to enforce the statute if a somewhat similar Texas statute is found to be constitutionally permissible.”
The judge ruled that the lawsuit will proceed.
Protect The 1st will monitor this case and report the results.
The freedom of the press is a First Amendment right that protects the ability of every American to know what our government is doing in our name. Reporters expose much of what the powerful in government and in corporations would rather keep quiet, and in doing so, journalists face a variety of threats in the performance of their jobs: harassment, assault, improper legal action, and even death threats.
The Freedom of the Press Foundation has been monitoring and logging these dangers for several years now. They provide hard data on their U.S. Press Freedom Tracker, a database of incidents involving journalists in the United States. It is an indispensable tool for anyone who wants to preserve, protect, and enhance civil liberties by protecting a free and unencumbered press.
The U.S. Press Freedom Tracker tracks the arrests of journalists, the seizure of their equipment, assaults, and interrogations at the U.S. border. It also tracks legal actions, such as subpoenas and prior restraint orders. The database extends back to 2017, grouping its data by well-defined categories. Altogether, the database offers a comprehensive understanding of the threats to press freedom at a glance.
For example, one can see the explosion in assault incidents that coincided with the protests and riots of the summer of 2020. The tracker data are complemented by up-to-date reporting on these incidents.
Among the events it tracks and reports on are legal actions that threaten to intimidate reporting. In October, for example, Ohio’s Scioto Valley Guardian Editor-in-Chief Derek Myers was charged with felony wiretapping for publishing a recording of witness testimony from an ongoing trial in Ohio.
After judicial back-and-forth on whether to bar recordings of testimony in a murder trial, someone did just that. Myers was out of the country when he was provided a secret recording of the testimony taken by someone in the courtroom. Myers later published condensed portions of that recording.
Judge Anthony Moraleja responded by issuing a search warrant for the Guardian equipment. A laptop was seized, along with Myers’ cellphone. Myers was then charged with interception of wire, electronic, or oral communications. Myers’ attorneys pointed to the Supreme Court case Bartnicki v. Vopper, which ruled that the media cannot be held liable for publishing information that was obtained illegally by a source.
All this information was logged and reported by the U.S. Press Freedom Tracker, just one example of the rich resources civil liberties advocates can find here.
Protect The 1st today joined with almost 40 other civil liberties and news organizations, led by the Freedom of the Press Foundation, in a letter urging Senate Majority Leader Chuck Schumer to include the PRESS Act in any year-end omnibus spending bill.
The PRESS Act, which passed the House in September, would provide a federal shield law protecting journalists from surveillance or compelled disclosure of source materials, except in emergency situations.
Other signers include the American Civil Liberties Union, the Center for Democracy & Technology, the Electronic Frontier Foundation, The Knight First Amendment Institute at Columbia University, PEN America, and the Project for Privacy and Surveillance Accountability.
Read the whole letter here.
Elon Musk’s release of Twitter’s records to journalist Matt Taibbi that revealed a content moderation decision by Twitter to delete the Hunter Biden laptop story continues to set off a chain of recriminations. Some fevered reactions call into question basic constitutional principles.
For example, former President Trump publicly posted (and later tried to walk back) a statement saying that such an act of censorship is one of several reasons to “terminate” provisions of the U.S. Constitution. That bit of histrionics aside, what does the Constitution actually say about the rights of Twitter and its users?
Twitter as a private company is not bound by the First Amendment: it can freely decide to post or remove content. The decision to remove an article with political content in the shadow of a presidential election did not violate the letter of the law. But it did arguably violate First Amendment principles.
Leave it to progressive Rep. Ro Khanna (D-CA) to remind us in a recent op-ed in The Wall Street Journal the once-banal but seemingly lost truth that the Constitution and its freedom of speech works for all people, in every direction, all the time.
Rep. Khanna wrote: “Defending free speech is easy when it’s speech you agree with. Defending speech you dislike, or speech that doesn’t advance your interests, is more challenging. But it is in exactly those uncomfortable situations that American democratic principles call on us to protect the free exchange of ideas and freedom of the press.”
Rep. Khanna points to the seminal 1964 Supreme Court case New York Times Co. v. Sullivan that debate on public issues should be “uninhibited, robust, and wide-open.” Even though this debate may “include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials,” that is no cause for censorship.
Certainly, Twitter and any other social media company have an absolute First Amendment right to manage content and to exclude the Kanye Wests of the world. But with size should come acceptance of responsibility.
Khanna’s position is not posturing after the fact. Twitter’s records reveal that when the censorship occurred, Khanna wrote to Twitter’s general counsel saying that the company’s actions “seemed to be a violation of First Amendment principles.”
Rep. Khanna has it just right. Twitter’s removal of the content was a violation of the principles and spirit of the First Amendment, even if not an actionable violation of the law. The principles of the First Amendment are foundational to who we are as Americans. They should be for social media companies as well.
Protect The 1st commends Congressman Ro Khanna for standing up for speech – even when it is uncomfortable.
Protect The 1st supports cases before the U.S. Supreme Court concerning school choice and follows political developments in favor of the millions of American parents who send their children to private schools, many of which are religious schools.
But what is driving the rising numbers of parents to send their children to private schools?
Since 2019, some two million children have exited public school for a private alternative, with another two million expected to go private by 2030. More than 3.1 million children study K-12 curricula at home, added to the millions of children in private schools.
A recent Washington Post magazine piece by John D. Harden and Steven Johnson captures the reasons why parents opt for a private school for their children, and highlights the reasons behind the decision of some parents who have chosen religious schools:
But parents also are fleeing public schools that often do an inferior job of instruction:
Parents also value the often-superior instruction of private schools, which by law must teach to the same state-mandated standards as other schools. One woman said, “I struggle with this decision because I believe I’m contributing to the failure of public schools and society, but, honestly, public education is failing anyway.”
In all our conversations and work with private schools and parents, what comes through loud and clear is a desire to have children taught specific values along with quality instruction. Protect The 1st will continue to work to protect the free exercise of school choice and the opportunity to make a religious school choice as an expression of one of the most personal decisions on how to raise children.
How wrong does a journalist have to be in her reporting to be held liable for a false statement about a public figure?
The baseline for libel of a public figure traces back to the 1964 New York Times v. Sullivan opinion, in which the U.S. Supreme Court held that a city public safety commissioner could not win a liable suit against a newspaper over minor misstatements in an ad. That case set a lasting precedent that in order to prevail a public figure must prove actual “malice” – a statement made knowing that it is false or with reckless disregard to its truth or falsity – to win a libel case.
The limits of protected speech and the definition of a public figure were expanded when Hustler publisher Larry Flynt was sued by The Rev. Jerry Falwell after producing a fictional and pornographic “interview” with him in the 1980s. The Court ruled against Falwell, holding that the prominent minister was a public figure for First Amendment purposes.
Recent years, however, have seen fine-tuning in the direction of the plaintiffs. In 2017, Rolling Stone magazine agreed to pay $1.65 million to the University of Virginia chapter of a fraternity after falsely portraying its members as brutal gang rapists. The magazine capitulated because the reporter in this case was demonstrated to have practiced a degree of carelessness that could easily be judged as “malice.”
An ongoing, high-profile case will once again demonstrate the courts’ application of the “malice” standard and the rights of public figures in a libel suit. A federal court will allow former Rep. Devin Nunes to proceed on one claim made by MSNBC commentator Rachel Maddow on her eponymous TV show in 2021. Maddow’s statements concerned a mysterious package delivered to the House Permanent Select Committee on Intelligence more than a year before. Addressed to Nunes, the package had come from a Ukrainian politician believed to be close to the Putin government. Nunes’ staff delivered the package unopened to the FBI, while Rep. Nunes sent a letter to the attorney general notifying him of the receipt of the package.
In July 2020, Rep. Sean Maloney publicly asked Rep. Nunes if he had ever received materials from this individual, Andriy Derkach, suspected by U.S. intelligence of operating on behalf of the Kremlin. And if so, would Nunes share what he had received with the committee? Nunes declined to answer.
On her show, Maddow said that the mailer “is singled out by name by the Director of National Intelligence as someone under Vladimir Putin’s direct purview who helped run this organization targeting our election last year. Congressman Nunes accepted a package from him. What was in it?”
Maddow’s next made more problematic statements: “Congressman Nunes has refused to answer questions about what he received from Andriy Derkach. He has refused to show the contents of the package to other members of the intelligence community. He has refused to hand it over to the FBI which is what you should do if you get something from somebody who is sanctioned by the U.S. as a Russian agent.”
The U.S. District Court for the Southern District of New York refused to allow Rep. Nunes to sue over the statements that he had refused to answer questions, or that he had refused show the contents of the package to other members of the intelligence community. These statements are true (or true enough), the federal court reasoned, because to the average viewer the “intelligence community” would certainly cover the House intelligence oversight committee.
Where Maddow and her employer are at risk is the statement that Nunes refused to hand the package over to the FBI. The court found this statement “does not fall within the fair report privilege” because “it is not substantially true.” Thus, the court dismissed all of Nunes’ claims except this one.
Will Maddow’s false statement amount to “malice” in the eyes of the court? Would a loss by her lead to more careful reporting, or would it have a chilling effect on journalism? Once Maddow’s statement is litigated, the outcome will sharpen our understanding of how courts today judge a factual error, how they continue to apply libel law to public figures, and the implications of these judgments for the First Amendment.
This is a case to watch.
Jonathan Savas v. California State Law Enforcement Agency
Protect The 1st filed a brief on Friday in favor of a Supreme Court petition from 21 current and former lifeguards who are being forced to remain for years against their will as dues-paying members of a public employee union.
In September 2019, these California Department of Parks and Recreation lifeguards signed forms that authorized a public union, the California State Law Enforcement Agency, to enroll them as members and deduct union dues from their wages.
On the form was a vaguely worded statement that there were limitations to withdrawal from the union. This may have seemed like boilerplate since a Supreme Court opinion in June 2018, Janus v. American Federation of State, County, and Municipal Employees, held that public-sector unions cannot require non-member employees to pay agency fees covering the costs of even non-political union activities.
The form did not explain that if members wished to resign their union membership, they could only do so during a single thirty-day period every four years. This means the lifeguards who signed the form will be forced to remain union members until July 2023. Over this time, any political stance or activity taken by the union will be done in the name, and with the money, of these unwilling members.
The lifeguards sued to protect their First Amendment rights. In April, the federal Ninth Circuit Court of Appeals ruled against them.
In our brief before the Supreme Court, Protect The 1st informs the Court:
“The front page of the California State Law Enforcement Agency (‘CSLEA’) website currently sports a banner reading ‘My Union, My Choice!’ But when Petitioners asserted their choice to leave that union, the union and the state of California sang a different tune. California has a ‘maintenance of membership’ agreement with CSLEA, which forces employees to remain union members and pay full union dues for four years, all the while subsidizing union speech they no longer wish to support.
“Compelled speech and association—especially of a political nature—is not permissible under the First Amendment. And it is particularly shocking in this case, where the State seizes money from Petitioners’ paychecks and gives it to the union, which in turn supports political candidates and legislation through multiple election cycles.”
Our brief demonstrates three reasons why the Court should take up this case.
The “Member Maintenance” Agreement Compels Political Speech
California is forcing these government employees to support union speech, including political speech and candidates supported by the union, for up to four years. The repeated injuries to First Amendment rights over such a long period of time are especially egregious.
Even De Minimis Violations of the First Amendment Are Illegal
Compelling speech from American citizens for four years is unconscionable, but any compelled speech or association that violates the First Amendment, even if that compulsion includes only a few words or lasts for a few moments, is objectionable. As the Supreme Court held in 1976, “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”
The Lower Courts Are Eviscerating Janus’s Protections
Before the Ninth Circuit’s ruling against the lifeguards in April, the Third and Seventh Circuits had also imposed improper limits on the Supreme Court’s Janus decision. The Court had made it clear that “compelled subsidization of private speech seriously impinges on First Amendment rights.” Yet lower courts continue to allow such violations.
“This petition gives the high Court the means by which to reinforce the plain meaning of its ruling in Janus to the lower courts,” said Gene Schaerr, general counsel of Protect The 1st. “It upholds the obvious principle that the erosion of our First Amendment rights for even a minute is unacceptable – and the maintenance of that violation for years is obscene.”
President Biden on Wednesday gave the people of the Apache Stronghold reason for hope that the administration will weigh in on the side of religious liberty. The president’s statement is the second hopeful sign for the Apache in recent days that their sacred religious site, Oak Flat, will be preserved.
For months, it appeared the only remaining hope for the Apache Stronghold in Arizona to avoid the utter destruction of Oak Flat in the Tonto National Forest was the slender chance the U.S. Supreme Court would take up their case. Losing before the Ninth Circuit Court of Appeals, the Apache certainly had a strong case to make to the Supreme Court that the Ninth had erred. The planned copper mine and land swap authorized by Congress in 2014 and upheld by the Ninth Circuit would desecrate and destroy the Apache’s sacred lands – a centuries-old place of worship, recognized as such in a treaty with Washington. Thus, Oak Flat, or Chi’chil Biłdagoteel as the Apache call it, would make for a model religious liberty test case for the high court.
The Supreme Court, however, receives almost 6,000 such petitions each year, many of which also test critical constitutional questions. As a result, the Court only accepts 2.8 percent of petitions (about one-half the rate of acceptance for applicants to Harvard University).
Then, in mid-November, the improbable happened – not before the Supreme Court, but before the Ninth Circuit. That court voted to rehear the case before a full court of 11 judges. Such an en banc hearing for a case the court has already adjudicated is extremely rare. Apparently, most judges were skeptical of the ruling of the court’s three-judge panel that held that transforming land central to the Apache religion into a gigantic crater would somehow not infringe on their freedom of worship.
Then, on Wednesday, President Biden committed to protecting a site in southern Nevada sacred to the Fort Mojave and other Native American tribal nations – a move rich in implications for the Apache.
President Biden promised to create a national monument named after the sacred Spirit Mountain, known as Avi Kwa Ame to the Mojave. This action is consistent with long-standing administration policy of working closely with tribes in an effort to manage lands and live up to treaty obligations. The sacredness of Oak Flat has long been recognized by treaty and in statements between the Apache and Washington, D.C.
There are other parallels between Spirit Mountain and Oak Flat. The Apache believe that Oak Flat is a space where the boundary between the human world and the sacred is thin, making it a place to communicate with the Creator. The administration would be following the same policy if it weighs in on the side of the Apache – or intervenes if the Apache should lose in court.
It would be consistent for the administration to similarly memorialize and protect Oak Flat in recognition of the Apache’s sacred site. Instead of a copper mine, perhaps the next generation will be able to visit and worship at the Chi’chil Biłdagoteel National Monument.
The U.S. District Court for the Northern District of Florida recently halted the enforcement of several higher education-related provisions of that state’s “Stop WOKE Act.” This action by a federal judge highlights the pitfalls of trying to extend Florida’s popular movement to define teaching about race and gender for elementary and secondary public schools to higher education.
In September, the Foundation for Individual Rights and Expression (FIRE) filed a suit challenging the constitutionality of the law’s higher-education restrictions. The Stop WOKE Act expands Florida’s anti-discrimination laws to prohibit schools and companies from promoting ideas of race- or sex-based guilt to students and employees. A person should not be made to “feel guilt, anguish, or any other form of psychological distress” due to their race, color, sex, or national origin. The law includes higher education instruction, a provision that led to a proposal to link tenure to a professor’s adherence to this law.
Like many laws restricting speech, the Stop WOKE Act sounds commendable, but the provisions at issue here would have the practical effect of making professors worry about their job security and tenure if they even touched on issues of race or gender in class. Chief U.S. District Judge Mark Walker, appointed by President Obama, called the law “positively dystopian.”
The law, Judge Walker wrote, “officially bans professors from expressing disfavored viewpoints in university classrooms while permitting unfettered expression of the opposite viewpoints.” Judge Walker even colored his 138-page order with a vivid passage from George Orwell’s 1984 to make his point. The legal basis for the order rests on long-established judicial principles that academic freedom and the First Amendment go together.
“[T]he First Amendment does not permit the State of Florida to muzzle its university professors, impose its own orthodoxy of viewpoints, and cast us all into the dark,” Judge Walker wrote.
While Protect The 1st believes Florida had every right to regulate curricula of early grades in public schools in response to parental guidance, the law goes too far in trying to pass academia-wide restrictions, particularly in private, non-state schools. Public school teachers act on behalf of the state, and there are only so many hours in the school day. The state has a right to prioritize what it believes are the most important, elemental lessons that students should learn.
But professors are not government spokespeople in the sense that public elementary school teachers are. Blanket restrictions on lessons and content, especially at the university level, strike at the very heart of academic freedom. Restrictions that could also chill the speech of professors at private universities or those with tenure expands the possibilities for future state intervention and widens the latitude for unconstitutional legislation.
If you believe there’s a problem with ideological conformity, cancel culture, or “wokeism” in higher education, this approach is not the way to address those concerns. If anything, suppressing speech would create martyrs and only make their speech more popular. If you believe that higher education has become an echo chamber, agitate for more diversity in backgrounds, perspectives, and ideas, but not a gag order.
Protect The 1st has long supported the people of the Apache Stronghold as they’ve faced the gut-churning prospect that the government will allow a foreign mining consortium to transform their ancient site of worship into a giant crater as long as the Washington Mall and deep as two Washington Monuments.
Over the summer, a three-judge panel of the Ninth Circuit Court of Appeals issued a ruling that refused to protect Oak Flat, a large swath of the Tonto National Forest that the federal government recognized in a 19th century treaty as land held sacred by the Apache. The court ruled that the transfer of this land to a copper mining consortium resulting from a midnight deal in Congress did not substantially burden the First Amendment right to religious exercise of the Apache. Protect The 1st objected that the absolute destruction of a religious minority’s site of worship, the Apache’s equivalent of the Vatican or Temple Mount, was a “substantial burden” of the right of religious freedom guaranteed by the First Amendment and the Religious Freedom Restoration Act (RFRA).
In our view, the Ninth’s ruling would not only destroy the centerpiece of one religion, but would erode all religious protections guaranteed by RFRA. We weren’t alone in our thinking: Judge Marsha Berzon of the Ninth Circuit dissented, called her peers’ ruling “absurd,” “illogical,” “disingenuous,” and “incoherent.”
In August, the judges of the Ninth Circuit called for a vote to rehear the case en banc, in front of a full court of 11 judges. Such requests for a rehearing are exceedingly rare, limited to about one-half of one percent of cases. Legal observers welcomed the maneuver as a chance for dissenting judges to get their opinions on record as fodder for a bid for certification for oral argument before the U.S. Supreme Court. Few legal observers gave Oak Flat a realistic chance for an actual rehearing.
The Apache people, undaunted, responded in a positive and hopeful way by organizing a caravan to San Francisco to urge the court to go ahead and reconsider its ruling.
On Thursday, the full court voted to grant Oak Flat a full en banc rehearing.
Gene Schaerr, PT1 general counsel, congratulated the Becket law firm for its strong representation of the Apache.
“This is a very encouraging day for religious liberty, the Religious Freedom Restoration Act, and the rights of religious minorities in America,” Schaerr said. “It is remarkable that the Ninth Circuit itself sought this review of its decision.
“We congratulate the Ninth for this bold decision and look forward with enthusiasm to supporting the Apache’s case.”