Today Protect The 1st filed an amicus brief, drafted by the organization’s regular outside counsel and joined by several other groups, asking the Supreme Court to hear Thompson v. Marietta Education Association. The case asks whether public employees have a First Amendment right to decline to be represented by unions. Under Ohio law, Jade Thompson, a public-school teacher, is required to accept the Marietta Education Association as her exclusive representative in bargaining arrangements. Thompson, however, isn’t a member of the Association, and would—but for the law—reject the union’s representation.
 
There is something fundamentally wrong—and unconstitutional—about a law that requires you to accept the message or representation of another group. Recognizing that the First Amendment rights to speak and associate freely with others also includes the rights to not speak and to decline such association, Protect the 1st and a large group of other public policy research organizations and advocacy groups joined a chorus of other amici today urging the Court to hear the case.
 
The brief can be read here.

​The guarantee of freedom of worship contained in the First Amendment poses a grim if serious question: Do condemned prisoners have the right to have a clergy member present at their execution?
 
A federal law passed in 2000 – the Religious Land Use and Institutionalized Persons Act – sweeps aside zoning and other restrictions on the exercise of religious institutions within prisons, allowing inmates access to clergy and religious facilities.
 
The State of Alabama was poised to execute an inmate, Willie B. Smith, for a 1991 murder, without the presence of his minister. On early Friday, Amy Coney Barrett joined three liberal justices to compel Alabama to permit Smith’s minister to be present at his execution.
 
Justice Kagan wrote, “Alabama has not carried its burden of showing that the exclusion of all clergy members from the execution chamber is necessary to ensure prison security. So the State cannot now execute Smith without his pastor present, to ease what Smith calls the ‘transition between the worlds of the living and the dead.’”
 
Our criminal justice system incarcerates almost 2.3 million people. The allowance of a minister for Smith is a relatively minor burden for the prison, but it serves as an important principle that broadly extends other applications of an important First Amendment right – the freedom of worship.
 
In important ways, the Court is upholding the ability, as scripture says, to “continue to remember those in prison as if you were together with them in prison.”

Nadine Strossen, the eminent New York University law professor and former president of the American Civil Liberties Union, has an impeccably liberal resume. She has, nevertheless, braved the cancel police to speak often at Federalist Society events. And each time she does, she proves that liberals and conservatives can have fruitful exchanges of ideas.
 
At a Monday Federalist Society panel, Strossen noted the tendency among many to “labor under the illusion” that speech can be regulated. She made a cogent argument that the whack-a-mole strategy against vile speech is often self-defeating, describing “some government censorship that is illegal and unconstitutional, including how certain protestors have been treated in various cities around the country,” as well as “some executive orders that Donald Trump issued that were unconstitutional.”
 
She argued, however, that “a very free speech-sympathetic Supreme Court across the ideological spectrum” has contained threats to free speech by government.
 
So is there a bigger threat to free speech than government?
 
“By and large, the major real-world threat to free speech now is not coming from the government,” Strossen said. “It is coming from private-sector actors including the dominant online companies – Google, Facebook and Twitter.”
 
She quickly noted that many politicians don’t understand that the First Amendment applies only to the government. No one has a free speech right to be on Facebook or Twitter, which have the right to determine “who’s on and who’s off.”
 
But Strossen said there is a “cultural” environment at stake in the content moderation policies of these social media platforms.
 
“Meaningful free speech goes beyond just the letter of the First Amendment, that is necessary but not sufficient for a real meaningful free speech culture,” Strossen said. “If we don’t have meaningful free speech on these platforms that are now dominating not only private discussion but the civic discourse that is the lifeblood of democracy … we might as well not have it [free speech] at all, and that’s a real danger not only to individual liberty, but to democracy.”
 
We must, she argued, “look for alternative ways to constrain the power of the dominant platforms.”
 
When asked about the PACT Act, sponsored by Sens. Brian Schatz (D-HI) and John Thune (R-SD), which modifies Section 230 of the Communications Decency Act, Strossen said she found the bill “very promising,” but is waiting for further study before “completely signing off on it.”
 
The PACT Act, however, did tick the boxes she wants to see in legislation – transparency, notice of removed speech, the right to appeal the removal, and the accountability these elements create.
 
“These are procedural type protections that don’t exist now that I think are really important and could really be imposed by government in the nature of consumer protection laws,” she said. “Although they do not directly affect content moderation policies, once those policies are brought to light and scrutinized – you know the famous statement that sunlight is the best disinfectant – I think there will be a lot more pressure on these platforms to be more fair and even-handed in how they enforce these standards.”
 
Many free speech advocates would object, saying these regulations are intrusive and mandating transparency of content moderation is the antithesis of the First Amendment. Everyone agrees, however, that the current national dialogue is being distorted by the algorithms of the major platforms.

​On Friday, the U.S. Supreme Court took a stand, 6-3, for the freedom to worship over an onerous coronavirus-related order. The Court ordered the State of California to end its blanket ban on all indoor religious services as discriminatory. California was the only state to ban all indoor religious services. But the court did allow the state to limit indoor worship services to 25 percent of capacity, and left in place a ban on singing and chanting.
 
Justice Neil Gorsuch, though in the majority, issued an opinion declaring that he would have preferred a stronger ruling to protect the freedom to worship under the First Amendment. Some excerpts:
 
Since the arrival of COVID–19, California has openly imposed more stringent regulations on religious institutions than on many businesses. The State’s spreadsheet summarizing its pandemic rules even assigns places of worship their own row …
 
When a State so obviously targets religion for differential treatment, our job becomes that much clearer …
 
The State presumes that worship inherently involves a large number of people. Never mind that scores might pack into train stations or wait in long checkout lines in the businesses the State allows to remain open. Never mind, too, that some worshippers may seek only to pray in solitude, go to confession, or study in small groups …
 
California has sensibly expressed concern that singing may be a particularly potent way to transmit the disease, and it has banned singing not just at indoor worship services, but at indoor private gatherings, schools, and restaurants too…
 
Even if a full congregation singing hymns is too risky, California does not explain why even a single masked cantor cannot lead worship behind a mask and a plexiglass shield. Or why even a lone muezzin may not sing the call to prayer from a remote location inside a mosque as worshippers file in.
 
In her first signed opinion in a religious-liberty case, Justice Amy Coney Barrett chimed in: “Of course, if a chorister can sing in a Hollywood studio but not in her church, California’s regulations cannot be viewed as neutral.”
 
Underlying these opinions is a sense that Sacramento has a fine appreciation for the First Amendment rights of business – especially the movie business – but not for the thousands of churches, synagogues, mosques and temples in California communities.

In Norse mythology, trolls hide in wait for their victims. On the online world today, they destroy lives and reputations without ever being seen.
 
Kashmir Hill of The New York Times wrote a piece about a software engineer in the UK who is being victimized by an internet troll  – including false accusations about him being a pedophile, as well as being “a former janitor” masquerading as an IT consultant. Not content to destroy this man’s reputation and livelihood, the troll went on to do the same to the software engineer’s wife, brother-in-law, cousin and teenage nephew.
 
As she was writing the piece, Ms. Hill interviewed the person linked by metadata to these attacks. Soon, Ms. Hill herself and her husband were getting hit with lurid accusations on such select sites as Cheaterbot and BadGirlReports. One of the sites that carried the reputational attacks on the software engineer was Ripoff Report. Hill writes:

Ripoff Report, like the others, notes on its site that, thanks to Section 230 of the federal Communications Decency Act, it isn’t responsible for what its users post.

“If someone posts false information about you on the Ripoff Report, the CDA prohibits you from holding us liable for the statements which others have written. You can always sue the author if you want, but you can’t sue Ripoff Report just because we provide a forum for speech.”
 
With that impunity, Ripoff Report and its ilk are willing to host pure, uncensored vengeance.
 
Google has taken a stronger hand in deleting reputational attacks of a sexual nature. It has also downgraded Ripoff Reports. But the question of what to do about trolls remains.
 
Section 230 defends third-party posts, so it defends these kinds of ugly attacks. At the same time, without Section 230 the robust world of online speech we know today would be a ghostly realm of anodyne, curated and legal-reviewed speech.
 
Protect the 1st is in discussions with leading Members of Congress in a quest to see if it is possible to close loopholes that allow such obvious personal defamation without degrading freedom of speech. Can that needle be threaded?