“Here in America, we do not arrest our political opponents,” begins a recent opinion and order out of an Ohio federal district court. Yet, the case in question involves exactly that: the arrest and detention of a Trumbull County commissioner after she criticized the county sheriff during a commission meeting.
Now the courts have weighed in, finding the commissioner’s arrest constituted a First Amendment violation. It’s another example of local officials seemingly failing to understand our most fundamental of constitutional freedoms.
Niki Frenchko is the only Republican commissioner on the three-member Trumbull County Board of Commissioners. As the ruling describes, the other commissioners “viewed her as ignorant of the basic workings of county government and a nuisance, to put it mildly.”
This personal enmity came to a head in July 2022. A month prior, during a commission meeting, Ms. Frenchko read into the record a letter detailing allegations of improper treatment of prisoners jailed in Trumbull County. Sometime thereafter, Sheriff Monroe wrote a response letter expressing displeasure with Ms. Frenchko’s accusations, suggesting the claims had not been verified.
In the July meeting another commissioner ordered the clerk to read the sheriff’s letter into the record, at which point Ms. Frenchko repeatedly interrupted the clerk and further criticized the sheriff. (Perhaps with some reason – according to the Cincinnati Inquirer, seven lawsuits alleging civil rights violations have been filed against the Trumbull County Jail in recent years.)
Soon after, two sheriff’s deputies arrested Ms. Frenchko for violating Section 2917.12 of the Ohio Revised Code, prohibiting any person “with purpose to prevent or disrupt a lawful meeting,” from engaging in conduct that “obstructs or interferes” with the meeting or engaging in any speech that “outrages the sensibilities of the group.” Dwell on that phrase for a moment – since when does outraging the sensibilities of a group justify a restraint on political speech under the First Amendment? Although federal Judge Philip Calabrese found the statute in question to be content-neutral and neither overbroad nor vague, he did find the arrest to be retaliatory and a clear violation of Ms. Frenchko’s First Amendment rights. Judge Calabrese writes:
“Without question, the disruption that led to Commissioner Frenchko’s removal and arrest was her speech itself. And not just any speech. The speech of an elected official, delivered at a public meeting, addressing a matter of public concern. Speech that communicated a message disfavored by those in power. Speech highly critical of another elected official.”
Readers of this blog might remember a similar case in the San Antonio area in which personal animosity between elected officials led to the arrest of a 72-year old city council member on trumped charges. The Supreme Court is set to hear that case, Gonzalez v. Trevino, later this year.
If an elected official is obnoxious and overtalks her colleagues, a commission may be in the right to ask her to leave the meeting. But this commission overreached, punishing this elected official for her speech with handcuffs. This trend – weaponizing the law to punish disfavored speech – is troubling, but Judge Calabrese’s ruling in favor of Ms. Frenchko is a reminder that many courts are still willing to enforce respect for the First Amendment.
Twenty-one House and Senate Members, including House Speaker Mike Johnson, have signed a Federal Education Freedom Pledge “to cosponsor and vote for legislation that allows federal funding to follow students.”
That simple statement encompasses a growing philosophical shift as policymakers begin to attach public funds to students, not to specific schools systems, whether public or private. Speaker Johnson is a standout leader of this trend. Before attaining the speakership, Rep. Johnson was a co-sponsor of the Educational Choice for Children Act, which would direct tax credits for K-12 scholarships. The legislation has more than 140 co-sponsors in the House and nearly 30 in the Senate.
As we conclude National School Choice Week, there is much to celebrate – but still much more to accomplish. For decades, the expansion of the school choice movement has grown at the edges of public policy awareness. In 2023, it exploded across the country, with Tennessee now shortly expected to become the 10th state to pass universal school choice.
Last year, Montana became the 46th state with an official charter school law, while New York State loosened its charter school cap. States from Utah to South Carolina, Iowa, Arkansas, and Montana have enacted educational savings accounts (ESA) that allow students to devote public education funds to private schools. Florida, Indiana, New Hampshire, and Tennessee recently expanded or converted ESA programs.
The school choice movement has the potential to go fully national. Polls show that almost 70 percent of Democrats supported school choice in 2022 – an increase of 9 percent from the pre-Covid era. It is true that all 21 signatories to the Federal Education Freedom Pledge are Republicans. Most of the states that have enacted or expanded school choice are considered red states. But there are growing signs that Democrats are following the lead of their constituents. Pennsylvania Gov. Josh Shapiro, a Democrat, recently said in an interview: “We should have scholarships for poor kids in struggling school districts – particularly poor kids of color – to give them an opportunity to get more tutoring, to get more help, to be put in the position where they can go to the schools that are best for them.”
The vast majority of Americans support school choice over concern for the flagging, often mediocre, performance of the American public educational system. Our organization supports school choice for yet another reason. The heritage and values we bequeath to our children will be our longest-lasting expression of speech possible, one passed down the ages.
That is why Protect The 1st sees school choice as a natural extension of the guarantees of the First Amendment. School choice encourages true educational pluralism and eliminates top-down imposition of ideologies – which vary among the states – by monolithic, public-school systems. Choice allows all parents, religious or nonreligious, conservative or liberal, to find schools that best fit the values they want to pass on to their children.
Here's to having even more to celebrate during National School Choice Week 2025.
In the closing days of 2023, Elon Musk and X Corp lost the first round of their bid in a state court to overturn a California law that would require social media platforms to disclose their content moderation policies. The law in question came into effect in 2022 and was advertised as a way to tamp down on hate speech, disinformation, harassment, and extremism.
The suit alleged that that the law’s real purpose was to coerce social media platforms into censoring content deemed problematic by the state. While District Judge William Shubb ruled that the law does impose a substantial compliance burden, he found it does not unjustifiably infringe on First Amendment rights.
Protect The 1st believes X has a strong basis to appeal under settled precedent.
For example, in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio (1985), the U.S. Supreme Court found that states can require an advertiser to disclose information without violating the advertiser's First Amendment free speech protections. But the disclosure requirements must be reasonably related to the state’s interest in preventing deception of consumers. This is not a case of selling gummies and advertising them as cures for cancer.
It is reasonable to assert that some social media companies might do themselves a favor by releasing simple, clear content moderation policies to the public. But we should never forget that these policies are confidential, proprietary information. Requiring their forced disclosure could tip the scales in favor of state-enforced censorship of social media, which at least one federal judge believes is already occurring on a mass scale. Worse, the California law violates the First Amendment by compelling speech on the part of the companies themselves.
Protect The 1st expects X to appeal with good prospects to overturn this ruling.
No Labels just won its court battle to block candidates from using its ballot line to run for office in Arizona. No Labels is a “centrist” political party gearing up for a potential third-party presidential campaign to take on Joe Biden and Donald Trump if they are the nominees. Whatever your politics, this decision is a big win for the freedom of association – held by the U.S. Supreme Court to be the logical outcome of the First Amendment’s rights of free speech, assembly, and petition.
No Labels in October sued Adrian Fontes, the Secretary of State for Arizona, in an effort to keep potential down-ballot contenders from running as No Labels candidates without authorization. No Labels does not plan to run congressional candidates.
No Labels filed suit shortly after Richard Grayson, a man who has run for office at least 19 times, announced he would run as candidate for a minor state office under the party’s banner. Under Arizona law, this would have forced the fledgling movement to reveal its donors. Some Democrats have accused No Labels of being a spoiler that will poach votes from Biden, helping to pave the way for Trump to return to the White House. "I will use the campaign to expose the scam of No Labels (and to) excoriate the selfish and evil people who have organized this effort and their attempt to make sure that Donald Trump wins in November," Grayson said.
Courts have long recognized that for the freedom of association to mean anything we must respect its flip side – the freedom to refuse association. Both rights are subject to reasonable limitations, but such reciprocity is necessary in any relationship.
Dr. Benjamin F. Chavis, Jr., a No Labels national co-chair, and former Missouri Gov. Jay Nixon, the group’s director of ballot integrity, said in a statement that, “Our ballot line cannot be hijacked. Our movement will not be stopped.”
Just like Vivek Ramaswamy could not automatically declare himself Trump’s running mate, a No Labels party member should not be able to unilaterally declare himself or herself a candidate on the ballot with no input from party leaders. Federal judge John J. Tuchi ruled that to enable Grayson to run as a No Labels candidate without prior authorization from the party would violate the party’s chosen structure and rights.
“The Party has substantial First Amendment rights to structure itself, speak through a standard bearer, and allocate its resources,” Judge Tuchi wrote.
Protect The 1st strongly supports Judge Tuchi’s ruling. This clear stand for association rights is a significant reaffirmation of the Constitution, regardless of any political implications. We look forward to further developments in this case.
The Department of Health and Human Services recently issued a final rule entitled “Safeguarding the Rights of Conscience as Protected by Federal Statutes.” It’s a deliberate but moderated rollback of a Trump-era rule that sought to protect physicians and nurses from being forced to perform medical procedures that violate their consciences.
This is but the latest in a long-running back-and-forth between presidential administrations on the enforcement of statutory conscience provisions passed by Congress. Those laws – the Church Amendments, the Coates-Snowe Amendment, the Weldon Amendment and others – precondition the receipt of federal dollars for health care entities on the expectation that recipients respect the religious liberties of providers who object to performing abortions or other procedures as a matter of conscience.
In 2008, the Bush Administration attempted to put an enforcement mechanism in place through HHS rulemaking that would have authorized the agency to ensure compliance. In 2011, the Obama Administration rescinded much of that rule. The tug-of-war continued in 2019, when the Trump Administration again attempted to enshrine some means of enforcement within the department’s regulations.
That proposed rule permitted “individuals, entities, and health care entities to refuse to perform, assist in the performance of, or undergo certain health care services or research activities to which they may object for religious, moral, ethical, or other reasons." More critically, it allowed HHS to potentially defund healthcare entities that violated that dictum.
Now it’s Biden’s turn to tug back. According to the newest version of the conscience framework, it “retains, with some modifications, certain provisions of the 2019 Final Rule regarding federal conscience protections, but eliminates others that are redundant or confusing, that undermine the clarity of the statutes Congress enacted to both safeguard conscience rights and protect access to health care, or because significant questions have been raised as to their legality.”
Behind this regulatory speak is a clear desire to weaken the agency’s enforcement power on these issues of conscience.
For their part, the agency asserts that modifications are necessary to strike an appropriate balance between provider and patient rights. And to be fair, parts of the Trump rule remain in place, including boilerplate that protects “the rights of individuals, entities, and health care entities to refuse to perform, assist in the performance of, or undergo certain health care services or research activities to which they may object for religious, moral, ethical, or other reasons."
The good news is that this new rule is not an actively hostile rule to healers’ conscience rights. But the change inspires Protect The 1st to give close scrutiny to this rule’s enforcement.
The first deepfake of this long-anticipated “AI election” happened today when a synthetic voice sounding like Joe Biden made robocalls to New Hampshire Democrats urging them not to vote in tomorrow’s presidential primary.
“It’s important that you save your vote for the November election,” fake Biden tells Democrats. Whoever crafted this expected voters to believe that they have only a limited storehouse of votes and could run out if they were to spend one tomorrow.
Members of Congress and state legislators are racing to pass laws to make these tricks a crime. We urge lawmakers to take a careful and narrow approach, lest we outlaw Tom Hanks as Forrest Gump appearing with Presidents Kennedy and Nixon, or obvious satire like a Saturday Night Live skit. Protect The 1st agrees that laws should narrowly target those who perpetrate deepfakes to short-circuit an election. They cheat voters and make a mockery of the First Amendment by attributing statements or creating lurid images of candidates saying and doing things they would never say or do.
The good news today is that the media was alert to these dangers and reported this dirty trick in real time. Expect more such incidents. Vigilance will be needed throughout the year.
Jewish students at Harvard are suing the university for failing to address rampant antisemitism on campus. Their case, Kestenbaum v. Harvard, raises sharp questions about free speech and the responsibilities of a private university. Harvard is not required by law to observe the principles of the First Amendment the way a state-sponsored school would. But Harvard must live up to its self-proclaimed commitment to open discourse.
The plaintiffs, Students Against Antisemitism, contend that “since October 7, 2023, when Hamas terrorists invaded Israel and slaughtered, tortured, raped, burned, and mutilated 1,200 people – including infants, children, and the elderly – antisemitism at Harvard has been particularly severe and pervasive.”
One of the central claims of the case is that “Harvard selectively enforces its policies to avoid protecting Jewish students from harassment, hires professors who support anti-Jewish violence and spread antisemitic propaganda, and ignores Jewish students’ pleas for protection.” This, combined with the university's reluctance to discipline students engaging in antisemitic behavior, paints a disturbing picture.
The lawsuit points out a stark contrast: while Harvard mandates training classes to address various forms of discrimination – including “sizeism,” fatphobia, racism, and transphobia – it seems lackadaisical about antisemitic incidents. This was memorably captured by former Harvard President Claudine Gay who suggested “that calls for the genocide of the Jewish people do not necessarily violate Harvard’s policies.”
Furthermore, the case highlights instances where Harvard faculty members have not only condoned but actively participated in rallies characterized as antisemitic. The suit claims the university's response to a student mob taking over a campus building for antisemitic purposes was not disciplinary action but the provision of burritos and candy.
The suit alleges that while the university aggressively enforces policies against bias towards other minority groups, it turns a blind eye to antisemitic incidents.
The plaintiffs propose disciplinary measures, including the termination of faculty and administrators involved in antisemitic discrimination, as well as suspension or expulsion for students engaged in such conduct. It also calls for antisemitism training for all members of the Harvard community and the rejection of donations implicitly or explicitly conditioned on the promotion of antisemitic views.
We commend Students Against Antisemitism for their bold stance against Harvard’s obvious double standard, but some of the lawsuit’s remedies might deepen Harvard’s problematic relationship with free speech – a serious concern for the university with the lowest-ranked commitment to speech in the nation, according to the free-speech organization FIRE. This ranking could actually get worse with the further expansion of diversity, equity, and inclusion (DEI) programs. Under the DEI banner, expansive bureaucracies have already cast a pall over campus speech. We need less of this, not more.
Consider how DEI was used at Harvard to defenestrate Carole Hooven, a distinguished author and longtime Harvard lecturer on evolutionary biology who committed the thought crime of asserting that there are two biological sexes. We need fewer such codes, not more, for speech to thrive again on campus.
The critical distinction to be drawn is between harsh language and justifications for what constitutes a just war, and the celebration of outright hatred, violence, and heinous acts. As we previously wrote, “if someone is highly critical of Israel, the bombing of Gaza, or is pro-Palestine, they are well within the parameters of a fair debate. But if someone can respond to the murder of babies and find it ‘exhilarating,’ (as one Cornell professor did), they may be within the bounds of the First Amendment, but we have to ask if it’s just the speech that’s evil.
At some point, for private entities in particular, the heinous uses some make of free speech rights raise serious questions regarding the freedom of association (or disassociation) choices of the institutions themselves. Educational institutions cannot always hide behind the laissez faire ethos of free speech when choosing the administrators and the professors that represent them, or even the students who form part of the community the university actively creates.
Public institutions, like all of society, are challenged to adapt principles spelled out by the U.S. Supreme Court in its 1968 Brandenburg v. Ohio opinion, which gave maximum berth to speech – even hate speech. How do the principles of this ruling apply given the new technological reach of speech and the ability to use social media to incite others to violence in the form of swatting, anthrax, bombs, or doxing? How do we apply that ruling’s maximum respect for speech in modern circumstances so that if only a tiny percentage of followers is responsive to incitement, it still amounts to a high probability of violence?
Or, as former U.S. Senator and current University of Florida President Ben Sasse told The Wall Street Journal, the U.S. Constitution “draws a deep, deep line at speech and action,” that “threats are the front edge of action,” and that “orchestrated plans, or getting to a definable way of targeting specific people, is when speech ceases to be deliberation.” The risk with such speech is unlawful violence, not just war or self-defense. On the other hand, universities must accept much controversial but benign speech today, even if it might “trigger” someone.
For Harvard, better approaches to free inquiry are emerging from the Council on Academic Freedom, a faculty organization dedicated to expanding respect for speech on campus. For society at large, perhaps the principles of Brandenburg need to be updated for the digital age. In the meantime, when the murder-adjacent speak out and self-identify, they should suffer the social and career consequences.
National Rifle Association v. Vullo
In this age of “corporate social responsibility,” can a government regulator mount a pressure campaign to persuade businesses to blacklist unpopular speakers and organizations? This is the central question the U.S. Supreme Court faces in National Rifle Association v. Vullo.
Here's the background on this case: Maria Vullo, then-superintendent of the New York Department of Financial Services, used her regulatory clout over banks and insurance companies in New York to strongarm them into denying financial services to the National Rifle Association. This campaign was waged under an earnest-sounding directive to consider the “reputational risk” of doing business with the NRA and firearms manufacturers.
Vullo imposed consent orders on three insurers that they never again provide policies to the NRA. She issued guidance that encouraged financial services firms to “sever ties” with the NRA and to “continue evaluating and managing their risks, including reputational risks” that may arise from their dealings with the NRA or similar gun promotion organizations.
“When a regulator known to slap multi-million fines on companies issues ‘guidance,’ it is not taken as a suggestion,” observed Gene Schaerr, PT1st general counsel. “It’s sounds more like, ‘nice store you’ve got here, it’d be shame if anything happened to it.’”
The U.S. Court of Appeals for the Second Circuit reversed a lower court’s decision that found that Vullo used threats to force the companies she regulates to cut ties with the NRA. The Second Circuit reasoned that: “The general backlash against gun promotion groups and businesses … could (and likely does) directly affect the New York financial markets; as research shows, a business's response to social issues can directly affect its financial stability in this age of enhanced corporate social responsibility.”
You don’t have to be an enthusiast of the National Rifle Association to see the problems with the Second Circuit’s reasoning. Aren’t executives of New York’s financial services firms better qualified to determine what does and doesn’t “directly affect financial stability” than a regulator in Albany? How aggressive will government become in using its almost unlimited ability to buy or subpoena data of a target organization to get its way? Can government stymie the speech rights of a national advocacy organization with 5 million supporters?
Even if you take Vullo’s justifications at face value, the government cannot override the Bill of Rights to slightly reduce the rate of corporate bankruptcies. The dangers of a nebulous, government-imposed “corporate social responsibility standard” is a grave threat to all constitutionally protected individual rights.
Protect The 1st is far from alone in this view. The ACLU, which also filed a brief in favor of the NRA, writes: “This is a critically important First Amendment fight: if government officials can pressure the businesses they regulate to blacklist the NRA in New York, then officials in other states can punish other advocacy organizations in the same way – including the ACLU itself.” Other not aligned with the NRA are alarmed as well. James P. Corcoran, former New York Superintendent of Insurance, in his amicus brief writes that while he does not support the National Rifle Association, he believes “that the threat to free speech at issue here could equally harm groups aligned with his own political views if left unchecked."
For all these reasons, we urge the Supreme Court in this case to put the First Amendment first.
Statement by Bob Goodlatte, former Chairman of the House Judiciary Committee and Senior Policy Advisor to Protect The 1st
“Once again, the House has passed the Protect Reporters from Exploitive State Spying (PRESS) Act with unanimous, bipartisan support. Forty-nine states have press shield laws protecting journalists and their sources from the prying eyes of prosecutors. The federal government does not. From Fox News to The New York Times, government has surveilled journalists in order to catch their sources. Journalists have been held in contempt and even jailed for bravely safeguarding the trust of their sources.
“The PRESS Act corrects this by granting a privilege to protect confidential news sources in federal legal proceedings, while offering reasonable exceptions for extreme situations. Such laws work well for the states and would safeguard Americans’ right to evaluate claims of secret wrongdoing for themselves.
“Great credit goes to Rep. Kevin Kiley and Rep. Jamie Raskin for lining up bipartisan support for this reaffirmation of the First Amendment. As in 2022, the last time the House passed this act, the duty now shifts to the U.S. Senate to respond to this display of unanimous, bipartisan support. I am optimistic. At a time of gridlock, enacting this bill into law would be a positive message that would reflect well on every Senator.”
While the Becket survey shows widespread respect for religious liberty among the American people, the same cannot be said of state leaders.
The Religious Liberty in the States project’s second annual index reveals the distance between citizens’ respect for the free expression of religion and the sometimes outright hostility against it practiced in some states.
While we have been pleased by the significant growth in policy areas important to the First Amendment, such as more states adopting school choice and protecting religious charter schools, there is reason to remain concerned about a number of crucial religious liberty issues. Some states like Colorado have tried to block doctors from even discussing methods for reversing a chemical abortion, while others are working to deny parents their religious liberty right to opt their children out of instruction with extreme, ideological takes on family life and sex education topics.
This year’s report spotlights exactly where work is needed. Here are a few of the topline findings.
The Religious Liberty Index compiles data on fourteen different “safeguards” – key contentious issues where religious liberty is at play (a full list of these safeguards can be found here). These range from issues like the ability of medical practitioners to opt out of providing abortions, to whether a given state has its own RFRA (Religious Freedom Restoration Act). A composite score for each state is then assigned. The Religious Liberty in the States project approaches “religious liberty from the perspective that people of any faith or no faith should be allowed to live in all areas of their lives according to their sincere beliefs.”
The results are, contrary to what you might guess, far from a separation of red states from blue states. This year’s top performing state for religious liberty was Illinois, at 85 percent compliance with religious liberty. Next came South Carolina (67 percent), New Mexico (66 percent), Mississippi (64 percent), and Ohio (64 percent). The worst performing states were New York (27 percent), Vermont (26 percent), California (26 percent), New Hampshire (21 percent), and West Virginia (14 percent) at dead last. Each of these bottom performing states scored poorly in every safeguard and made little or no statutory space for religious liberty.
We should be careful to not mistake a top performing state for a state that is performing well. Even the top state, Illinois, earned only a “B” grade. If this were a school assignment, then 47 states would have a failing grade. As the report put it, more than half of all states are “doing less than half of what they could be doing.”
For some examples of how each state could improve their score, look to the median state, Wisconsin, which currently has no state RFRA on the books. This puts Wisconsin well behind the other 25 states that do have state RFRAs. Wisconsin has passed no laws providing legal exemptions for clergy or religious organizations’ participation in or facilitation of marriage or wedding celebrations that would conflict with the religious beliefs of the person or organization.
Low-ranked Colorado has proven to be a battleground for religious liberty this past year. A Catholic healthcare clinic had to sue the state for restricting the ability of physicians to discuss methods for reversing a chemical abortions with patients. Colorado is also being sued for imposing restrictions categorically forbidding all Archdiocesan Catholic preschools from participating in the state’s early childhood education program. It is no surprise, then, that Colorado ranked near the bottom on religious liberty at 41st place.
Other states ranked surprisingly.
For example, Texas, a state with its own RFRA and with a political disposition friendly to the issues polled by the Religious Liberty in the States project, ranked just beneath Colorado at 42nd place. The Lone Star state lacks laws that allow the refusal by healers of performing medical procedures, with no general conscience provision in healthcare.
As the new year gets underway, we look forward to using the data compiled by the Religious Liberty in the States project to further advance the cause of religious freedom across the country. These statistical and analytical tools are indispensable in the struggle to ensure that the First Amendment works for all Americans.
Yesterday, we reported on a RealClear Opinion Research poll demonstrating that a clear majority of Americans hold religious freedom to be a “fundamental human right.” Today is national Religious Freedom Day, which sees the release of a new survey from the Becket Fund for Religious Liberty that provides even stronger new evidence showing that “despite generational differences and ideological divides, America’s commitment to religious liberty remains strong.”
Jan. 16, 2024, marks the 238th anniversary of the Virginia General Assembly’s adoption of the Virginia Statute for Religious Freedom, Thomas Jefferson’s bleeding-edge innovation that became the basis for the Establishment Clause of the First Amendment to the United States Constitution. Today’s anniversary also comes some 30 years after the passage of the Religious Freedom Restoration Act, introduced by then-Congressman Chuck Schumer on March 11, 1993. RFRA established in law that the federal government cannot burden religious freedom without applying a strict scrutiny standard – that is, such a law must be the least restrictive means of a furthering a compelling government interest.
Each year, Becket publishes the Religious Freedom Index, based on meticulously collected polling data, to document Americans’ changing perceptions about First Amendment freedoms. They ask 21 of the same questions to a nationally representative sample size of American adults (1,000 people), with 15 additional, topical questions intended to gauge sentiment about current issues of public concern. This year, the overall index score is an all-time high of 69 (a composite score based on public opinion regarding six statistical dimensions of religious freedom).
Among this year’s top-line findings:
Other findings include a showing of robust support for the RFRA standard, with 88 percent of Americans favoring strict scrutiny or an even stronger standard for the protection of religious freedom.
Becket also posed a question regarding Apache Stronghold v. United States, a case about a site, sacred to the Apache for centuries, set to be pulverized by a mining company. According to the study, Americans overwhelmingly support protecting sacred sites, even at the cost of sacrificing economic priorities.
Becket releases another extremely encouraging report showing that support for religious freedom is healthy and growing year-over-year. We thank the Becket Fund for their continued efforts to document America’s ongoing commitment to one of its most foundational principles.
UPDATE: Eleventh Circuit Permanently Enjoins Unconstitutional Ban on Religious Advertising
Protect The 1st has long followed a First Amendment legal struggle between the Orthodox synagogue Young Israel of Tampa and the Hillsborough Area Regional Transit Authority (HART). That public authority had rejected Young Israel’s efforts to place advertisements for its “Chanukah on Ice” event on HART vehicles and bus shelters. The U.S. Court of Appeals for the Eleventh Circuit has now weighed in, permanently enjoining HART’s policy prohibiting ads that “promote a religious faith or religious organization.”
This case is important on multiple fronts. First, HART’s policy represents unconstitutional – and unreasonable – viewpoint discrimination because it bans religious speech on the sole basis of its religious character. It presents the troubling implication that if we can ban religious advertisements in public transit areas solely because they are religious, what’s to stop local governments from banning religious speech in public parks or other long-observed public venues of free speech?
Further, the case represents a milestone in First Amendment jurisprudence because it has resulted in a permanent injunction on continued implementation of the policy as written. As we wrote in our amicus brief:
“First Amendment rights are fundamental rights essential to every other form of freedom. As a result, First Amendment rights warrant special protection. Because courts cannot enjoin conduct and do not ‘strike down’ unconstitutional laws, a court cannot adequately protect First Amendment interests without including prohibitions against future illegal conduct in its injunction.
“Without such preventative relief, governments would be free to repeat the same constitutional violation in the future. Any resolution of this case that fails to prevent future harm does not adequately vindicate the First Amendment.”
Earlier, a district court had come down on the side of Young Israel, issuing a permanent injunction forbidding HART from “rejecting any advertisement on the ground that the advertisement primarily promotes a religious faith or religious organization.” On appeal, the Eleventh Circuit likewise upheld that permanent injunction, though on slightly different grounds, reasoning that “….HART’s policy, even if viewpoint neutral, is unreasonable due to a lack of objective and workable standards.”
Indeed, the court found that HART has “no specific training or written guidance to interpret its . . . policy.” Internal review of religious advertisements is subject to the whims of the reviewers, and HART makes no attempt to inform its employees of any “workable norms” that might help them make an objective determination of the policy’s application. The Eleventh Circuit’s ruling thus “‘means that there is no circumstance in which this particular ban on [religious] advertising could ever be lawful.’”
Presumably, HART could attempt to come up with a narrowed policy in the future. For now, we are pleased with and applaud the appellate ruling, which permanently protects Young Israel’s First Amendment rights vis à vis this policy – now and into the future.
A new poll by RealClear Opinion Research offers a compelling and, for many, likely unsurprising rebuttal to breathless media reports about the decline in religious belief among Americans and the rise of the “nones.”
The survey of 1,000 adults, conducted from December 19-21, found that 85 percent of respondents believe in God – with the same 85 percent also reporting a belief in heaven.
Fifty-eight percent of those polled self-identified as Christian (with 36.8 percent identifying as Protestant and 22 percent as Catholic). Some 2.9 percent identify as Members of the Church of Jesus Christ of Latter-Day Saints. The poll revealed the pluralistic wealth of religious belief in America: 3.2 percent consider themselves Muslim; 1.9 percent are Jewish; Buddhists account for 1.6 percent; and Hindus make up 0.5 percent.
Despite the clear Christian majority, respect for religious pluralism is strong, with an overwhelming majority of all Americans – 94 percent – saying they believe religious freedom is a fundamental human right.
Despite assertions that so-called “nones” make up a large and growing percentage of Americans, only 3.8 percent of respondents claim to be atheist while only 3.7 percent identify as agnostic.
The religious pessimists are right about one thing: While the RealClear poll did find that those who consider themselves religiously affiliated far outnumber those who do not, regular attendance at worship services is well below where it once was. Only 30 percent of respondents regularly attend a formal religious service once a week or more.
The good news for the First Amendment’s guarantee of the free exercise of religion remains. Large majorities believe that prejudice against Jewish and Muslim people is a very serious or somewhat serious problem in the United States. As RealClear writes, “Americans strongly believe that they have the right to practice the religion of their choice in the manner they choose or not to practice at all.”
With National Religious Freedom Day approaching tomorrow, this poll is a clear reminder that Americans overwhelmingly reject religious bigotry in all its forms. This RealClear poll is an excellent set up for our next report Tuesday on another poll from Becket’s Religious Freedom Index that will drill down deeper into Americans’ beliefs about the freedom of religious expression.
Read more of the RealClear poll’s top-line results here.
Censorship controversies made many headlines throughout 2023. We’ve seen revelations about heavy-handed content moderation by the government and social media companies, and the looming U.S. Supreme Court decisions on Florida and Texas laws to restrict social media. Behind these policies and laws is a surprising level of public support. A Pew Research poll offers a skeleton key for understanding the trend.
According to Pew, a majority of Americans now believe that the government and technology companies should make more concerted efforts to restrict false information online. Fifty-five percent of Pew respondents support the federal government removal of false information, up from only 39 percent in 2018. Some 65 percent of respondents support tech companies editing the false information flow, up from 56 percent in 2018.
Most alarming of all, Americans adults are now more likely to value content moderation over freedom of information. In 2018, that preference was flipped, with Americans more inclined to prioritize freedom of information over restricting false information – 58 percent vs. 39 percent.
Pew doesn’t editorialize when it posts its findings. For our part, these results reveal a disturbing slide in Americans’ appreciation for First Amendment principles. Online “noise” from social media trolls is annoying, to be sure, but sacrificing freedom of information for a reduction in bad information is anathema to the very notion of a free exchange of ideas. What is needed, instead, is better media literacy – not to mention a better understanding of what actually constitutes false information, as opposed to opinions with which one may simply disagree.
Still, the poll goes a long way toward explaining some of the perplexing attitudes we’re seeing on college campuses, where polls show college students lack a basic understanding of the First Amendment and increasingly support the heckler’s veto. These poll results also speak to the increasing predilection of public officials to simply block constituents with whom they disagree. And it perhaps explains some of the push-and-pull we’re seeing between big, blue social media platforms and big, red states like Florida and Texas, where one side purports to protect free speech by infringing on the speech rights of others.
While these results are interesting from an academic perspective, the suggested remedies raise major red flags. Americans want private technology companies to be the arbiters of truth. A lesser but still significant percentage wants the federal government to serve that role. Any institution comprised of human beings is bound to fail at such a task.
Ultimately, if we want to protect the free exchange of information, that role must necessarily fall to each of us as discerning consumers of news. The extent to which we are unable to differentiate between factual and false information is an indictment of our educational system. And, as far as content moderation policies are concerned, they must be clear, standardized, and include some form of due process for those subjected to censorship decisions.
More than anything, Americans need to relearn that if we open the door to a private or public sector “Ministry of Truth,” we will eviscerate the First Amendment as we know it. You might be on the winning side initially, but eventually we all lose.
A letter of protest sent by the lawyers of Rabbi Levi Illulian in August alleged that city officials of Beverly Hills, California, had investigated their client’s home for hosting religious gatherings for his family, neighbors, and friends. Worse, the city used increasingly invasive means, including surveilling people visiting the rabbi’s home, and flying a surveillance drone over his property.
A “notice of violation” from the city specifically threatened Illulian with civil and criminal proceedings for “religious activity” at his home. The notice further prohibited all religious activity at Illulian’s home with non-residents.
With support from First Liberty Institute, the rabbi’s lawyers sent another letter detailing an egregious use of city resources to launch a “full-scale investigation against Rabbi Illulian” in which “city personnel engaged in multiple stakeouts of the home over many hours, effectively maintaining a governmental presence outside Rabbi Illulian’s home.”
The rabbi’s Orthodox Jewish friends and family who visited his home had also received parking citations. The rabbi began to receive visits from the police for noise disturbances, such as on Halloween when other houses on the street were sources of noise as well. Police even threatened to charge Rabbi Illulian with a misdemeanor, confiscate his music equipment, and cite a visiting musician for violating the city’s noise ordinance, despite the obvious double-standard.
First Liberty was active in publicizing the city’s actions. In the face of bad publicity about this aggressive enforcement, the city withdrew its violation notice late last year.
Protect The 1st congratulates Rabbi Illulian and First Liberty for their bold stand against religiously motivated state surveillance. That the city of Beverly Hills would blatantly monitor and harass a household over Shabbat prayers and religious holidays, particularly at a time of rising antisemitism, is made all the worse by sophisticated forms of surveillance aimed at a legitimate First Amendment activity – the free exercise of religion.
This case is reminiscent of the surveillance of a church, Calvary Chapel San Jose, by Santa Clara, California, county officials, over its Covid-19 policies. Is there something about religious observances that attracts the ire of some local officials? Whatever their reasons, this story is the latest example of the need for local officials who are better acquainted with the Constitution, especially the First and the Fourth Amendments.
Everyone loves cake pops, right? We’re talking about those rounded pieces of cake with icing presented on sticks like lollipops. In the Commonwealth of Virginia, however, there is a bitter taste over what is and what is not protected speech when it comes to cake pops sold by a cottage vendor.
The state recently sent an email to Richmond-based baking entrepreneur Kelly Phillips after she posted a social media photo of her homemade baked goods, informing her that she lacked the requisite permits to advertise online. Ms. Phillips runs KP’s Kake Pops, a cottage foods establishment that is exempted from regulation under Virginia Code Section 3.2-5130(C)(3).
Virginia’s regulations prohibit home bakers from selling their products online without necessary permits, yet the First Amendment protects the conveyance of true information about lawful products. It’s called commercial speech and there is a whole body of law that backs it up.
So, when does posting Facebook photos constitute advertising? How do speech rights in advertising change with the prospect of online marketing? And is banning online advertising constitutional in the first place? The Supreme Court has suggested it is not.
In Virginia, the boundaries are murky. The state exempts cottage food businesses from regulation but prohibits them from online advertising. In Ms. Phillips’ case, roughly half of her sales come from posts she makes on her website and social media accounts, in which she informs followers where she plans to sell her goods at farmers markets. Her website also gives out her contact information for sales.
When the Virginia Department of Agriculture and Consumer Services contacted Ms. Phillips, they told her that her products “appear to be for sale for consumers on your Facebook page.” Another state official later confirmed “the VDACS Office of Policy and Planning has clarified that ‘offered for sale’ includes advertising on the Internet.”
To be clear, permit requirements are acceptable when a type of consumer good has the potential to be unsafe – particularly if they’re being sold online. At the same time, it’s hard to make the argument that posting a Facebook photo of cake pops and future appearances at community events constitutes sales. As the Institute for Justice recently explained in a letter to VDACS, “[s]elling cottage foods is legal in Virginia, and the First Amendment requires that talking about a legal activity must be legal too. The ban is also a poor policy choice because it stifles Virginians’ ability to start or grow their small businesses.”
To be fair, Ms. Phillips apparently has more than 2,000 flavors of cake pops. That sounds like a fairly significant operation. To the extent she’s avoiding regulation, that’s a significant government benefit. Still, Virginia should be required to demonstrate narrow tailoring to advance a substantial government interest if they want to abridge commercial speech.
There needs to be more clarity here, and we broadly agree with IJ’s calls for VDACS to rescind any guidance restricting commercial speech. As they write in their letter, “at bottom, VDACS’ policy is that people are free to sell cottage foods at their home or at farmers’ markets but forbidden from posting about that same food on Facebook or Instagram.”
When there are such close calls, Protect The 1st recommends leaning in on the side of speech. Besides, more cake pops are an inherent good in and off themselves.
Protect The 1st Drives Growing Support for Press Shield Law, Expansion of School Choice, and Giving Religious Liberty Its Day in Court
Protect The 1st looks back on an active year with many achievements in the protection of the First Amendment guarantees for free speech, a free press, and the free exercise of religion.
PRESS FREEDOM & THE PRESS ACT
Protect The 1st joined with more than 50 civil liberties groups in October to protest the FBI raid on the home of Tim Burke, a Tampa Bay journalist. The FBI seized Burke’s computers, hard drives, cellphone, and all the information they contain on sources and stories. We commented: “This raid on a journalist’s home and devices seems to be a flat contradiction of Attorney General Merrick Garland’s revision to the Justice Department’s News Media Policy forbidding the use of compulsory legal processes to obtain the newsgathering records of journalists.”
In late 2022 Protect The 1st went to Capitol Hill to promote the Protect Reporters from Exploitive State Spying (PRESS) Act – which shields journalists and their sources by granting a privilege to protect confidential news sources in federal legal proceedings. The House passed that bill, but it died in the Senate. The PRESS Act has since been reintroduced and Protect The 1st is pushing for another vote on the House floor in 2024. Protect The 1st Senior Policy Advisor Bob Goodlatte, former chairman of the House Judiciary Committee, said: “Journalism and the right to report on government actions must be better protected. We’ve all seen law enforcement officials under multiple recent administrations issue secret orders to surveil the private communications of journalists. Their freedom to report on government misdeeds is critical to maintaining a free society.”
In our work with parents, what comes through loud and clear is a desire for children to be taught specific values along with quality instruction. Protect The 1st will continue to work to expand school choice and to protect the free expression of religion through those choices. School choice becomes speech when it is a decision to express one’s values across generations.
We thus cheered on a school choice movement that swept the nation like a prairie fire in 2023.
Protect The 1st has also been active nationwide in protecting equal treatment for religious education.
With a strong liberty-minded majority on the U.S. Supreme Court, Protect The 1st is seeing a renewal and strengthening of speech and religious rights. Other courts are doing their part to preserve and expand religious liberty throughout the country.
For such an active year, it was appropriate that in November came the celebration of the 30th birthday of the Religious Freedom Restoration Act (RFRA). RFRA was a landmark bill signed into federal law by President Bill Clinton that ensures religious freedom is protected from government overreach. RFRA has since become a cornerstone of religious freedom, putting statutory muscle behind the promise of the free exercise of religion in the First Amendment. RFRA has since served as a guiding light for the courts in their deliberations on religious freedom. Protect The 1st’s litigation and advocacy rest firmly on the strong basis of this law.
PROTECT THE 1st IN COURT
2023 was a productive year for Protect The 1st in court as well. We filed five amicus briefs on a wide range of issues, two of which centered on religious liberty.
In March, we filed a certiorari petition before the Supreme Court in the case of Keister v. Bell. The University of Alabama – through an agreement with the City of Tuscaloosa – shut down a street preacher, Rodney Keister, who preached on city-owned streets near the school.
We expect more positive developments for the year ahead. We are hopeful Gov. Greg Abbott will succeed in persuading the Texas Legislature to add the Lone Star State to the honor roll of states that have now embraced widespread school choice. We hope to see a positive resolution for the Apache Stronghold in Oak Flat. And we are optimistic that courts will fall in line with the reasoning of the U.S. Supreme Court on granting equal treatment to religious education.
Protect The 1st also looks forward to courts applying the new standard set forth in Groff v. Dejoy. We are determined to give greater care to the claims of minority religions, which are often without the resources to fight for their rights like larger religions and denominations.
Protect The 1st will continue to advocate for the fullest protection of the speech, religious expression and other freedoms guaranteed by the First Amendment.
When the Big Walnut Local School Board of Education passed a resolution banning Pride and other “controversial” flags from school grounds, it did so against the objections of two board members and many parents and teachers, who voiced their opposition to the policy over two hours of public debate. Now, the ACLU of Ohio has weighed in, expressing “grave concerns with this policy, which is unconstitutional in multiple respects …”
Protect The 1st has always held that it’s the job of schools to educate children but the job of parents to instill personal values. We should always strike an appropriate balance between safeguarding the proper functioning of the classroom and overprotecting young people from any whiff of controversy. A blanket ban on "flags, banners, posters, electronic insignia and other items" that "promote activist causes, or [are] otherwise deemed controversial" falls short of any reasonable goal. It’s a vague, poorly articulated, viewpoint-based restriction unlikely to survive judicial scrutiny.
There seems to be growing confusion over the First Amendment at the local level (particularly at the Big Walnut school board, which previously landed in hot water for shutting down parental dissent back in 2022). School boards regularly overstep their bounds in the context of debates about educational curricula. That’s to say nothing of recent municipal and county attempts to go after newspapers based on unfavorable reporting.
The Big Walnut resolution is another example of attempting to direct the culture with laws and rules. The ACLU called it “vague to the point of incoherence.” That’s not far off. School boards and other government officials should be wary of exceeding constitutional strictures in their efforts to appease a vocal constituency, left or right – or themselves. We look forward to further developments in this story.