​Imagine you’re a barber. Your professional mission is to cut hair and make people look good. In walks Chewbacca, the Wookiee from Star Wars, looking for a job. Chewbacca never has had his hair cut. Sure, he’s a good space pilot, but he’s unkempt and ungroomed. Heck, Chewbacca doesn’t even believe in grooming – it’s not part of the Wookiee lifestyle. Hiring Chewbacca as a barber would reflect poorly on your business. It might even undermine your whole mission, because Chewbacca actively advocates against haircuts. Yet, if you don’t hire this anti-grooming, 8-foot canine, the government’s going to come after you.
 
Sounds ridiculous, right? That’s not too far from what’s actually happening in Illinois.
 
Two weeks ago, the Alliance Defending Freedom filed a lawsuit challenging a state law that forces religious organizations to hire employees who disagree with – or act in conflict with – those organizations’ deeply held religious beliefs.
 
The Illinois Human Rights Act, as amended in 2024, prohibits employers from refusing to hire employees based on their reproductive decisions. Fair enough. That law includes a religious exemption, but the state attorney general has made the argument that such an exemption does not permit discrimination in hiring “even if such discrimination is consistent with (or mandated by) religious tenets.”
 
The plaintiff, the Pregnancy Care Center of Rockford, is a Christian organization that “affirms, proclaims, and strives to live out Christian beliefs about the dignity of human life and the nature of marriage by sharing the Gospel, promoting Christian beliefs on reproduction, opposing abortion, and providing free resources.” 
 
Similarly, the Diocese of Springfield, also a plaintiff, “affirms, proclaims, and strives to live out the teachings of the Catholic Church, including indispensable teachings about reproduction and marriage.” 
 
Together, these organizations seek to employ people who will advance their religious missions. Yet, the Human Rights Act is interpreted to make it an actionable offense to engage in speech that employees might deem “offensive” or “unwelcome.” It requires these organizations to proactively support employees’ reproductive decisions, even if they involve terminating a pregnancy. It further requires employers to relay these requirements in employee handbooks and workplace posters.
 
Obviously, such requirements are oppressive in their application to religious organizations. As ADF explains in their complaint, the act violates the plaintiffs “freedom of expressive association by forcing them to form associations and assemblies with employees whose reproductive decisions undermine their mission and message ...” It burdens their right to free exercise of religion by effectively “prohibiting faith-based speech and conduct related to reproduction.” And it violates their right to free speech “because it compels them to speak a message contrary to their beliefs not only to their current employees but also to prospective employees and the public in general.”
 
If this offends you, imagine if the law forced Planned Parenthood to hire people who told every person who walked in about the evils of abortion.
 
This Illinois law’s wide array of exemptions includes landlords, financial institutions, private clubs, and more. Yet, the government has made clear that it will not afford these plaintiffs a religious exemption based on their assessment of whether their hiring preferences reflect “bona fide occupational qualification[s].”
 
In Fulton v. City of Philadelphia, the U.S. Supreme Court held that a law burdening religion triggers strict scrutiny if it allows for discretionary exemptions. It’s hard to see how Illinois’ Human Rights Act, as applied, would survive such an analysis.
 
We’ll be keeping a close eye on this one.

​As Deseret News’ Kelsey Dallas reports, Utah’s year-old Religious Freedom Restoration Act is facing its first serious test. A new, purportedly faith-based group, Singularism, uses psilocybin-infused tea to guide practitioners on altered-state voyages. The records of those journeys are then enshrined as canon, effectively serving as scripture for the group.

Taking a rather dim view of this approach to enlightenment, Provo officials launched a raid and seized the group’s mushrooms – and, for some reason, their scriptures. Singularism, they argue, is in it for the money, and distributing illegal drugs is, well, illegal, under the state’s Controlled Substances Act. The regulation of food and drugs is, for better and for worse, a recognized governmental authority. Later, and in a move that they have perhaps already come to regret, officials moved the case to the federal bench. District Court Judge Jill Parrish granted the defendants a temporary injunction, ordering the return of their scriptures. Judge Parrish declared:

“[I]t is ironic then that not long after enacting its RFRA to provide special protections for religious exercise, that the State of Utah should so vigorously deploy its resources, particularly the coercive power of its criminal-justice system, to harass and shut down a new religion it finds offensive practically without any evidence that the religion’s practices have imposed any harms on its own practitioners or anyone else.”

It is important to remember, however, that is a temporary injunction. It remains to be seen how the competing interests of law enforcement and religious freedom will play out in this case.

At the federal level, the case evokes the landmark Religious Freedom Restoration Act (RFRA) of 1993, which in the years since has become the bedrock of modern religious liberty. To date, 29 states have agreed with the federal government by creating their own equivalent statutes. Utah is the latest.

Faith is faith, argues Singularism founder Bridger Jensen. Judge Parrish seems to agree, ruling that the law must protect “unfamiliar religions equally with familiar ones, both in design and in practice.” Entheogens, or drugs that are used to induce transformational – quite readily spiritual – experiences are nothing new, and now more than ever psilocybin is gaining traction as a serious vehicle for healing, especially for victims of PTSD.

Bridger Jensen for his part appears to be no fly-by-night guru, con artist, or drug dealer. A product of Provo, Jensen formerly worked as a mental health therapist. He also took the decidedly non-dodgy approach of locating Singularism in an office park adjacent to Utah Valley Hospital, then invited public officials to tour the facility (none did).

“A drug-distribution enterprise that’s cloaked in religion,” is how Harvard professor Josh McDaniel summarizes Provo’s perspective on the case. But McDaniel and others point out that the power of the federal RFRA since its passage has been the protection of exactly these kinds of obscure religious practices, especially seemingly exotic ones that cut against the grain of traditional mores.

Knowing this, the framers of the Constitution made the free exercise of religious practice central to our identity as Americans by enshrining it as “first among equals” of the five liberties guaranteed by the First Amendment. Nothing precedes it in the entire Bill of Rights.
​
Are some drugs illegal for a reason? Yes. Is Singularism strange? You bet. Is it for everybody? Most certainly not. Does it have a right to exist and even flourish in a free society? We shall see.

By now, most Americans have seen video of the arrest of Tufts PhD student Rumeysa Orturk, a 30-year-old Turkish national studying in the United States on an F-1 student visa. She was swarmed by six plainclothes officers, manhandled, and arrested before any of the federal agents bothered to show her a badge.
 
Orturk was then whisked away from that sidewalk in Somerville, Massachusetts, to a detention center in Louisiana before her attorney could file a petition for writ of habeas corpus and a federal judge issue an order telling the government to not to take her out of state. If Orturk is subsequently deported without being given due process, it will be an outrage that threatens to compromise the freedom of speech of every American.
 
When it comes to stopping antisemitic protesters who established “Jew Free” zones on campus, and terrorized Jewish students and faculty, Protect The 1st takes a backseat to no one. We won’t shrink from saying, even as an organization dedicated to the First Amendment, that foreign students who violently support Hamas – which invaded Israel and murdered more than a thousand people, including babies – should not be coddled by university administrators or ignored by immigration authorities.
 
Where is the law on this case? Visa holders have almost the same First Amendment rights as American citizens. But the law does stipulate that they can be deported for endorsing or espousing terrorist activities. To international students who come to the United States and agitate in favor of Hamas and other radical terrorists, we can only wish them a one-way ticket to those regimes.
 
This is a popular sentiment. More Americans – 43 percent – “strongly” or “somewhat” support deporting international students studying in the United States under some circumstances, according to a recent Economist and YouGov poll. Some 35 percent of Americans strongly or somewhat oppose these deportations. But this particular arrest is a consequence of the lack of precision in a presidential executive order to deport foreign students who engaged in “pro-jihadist” protests or “antisemitism.”
 
As far as any journalist has been able to tell, Ozturk’s only infraction was to cosign with a number of other students a March 26 student newspaper op-ed telling Tuft’s University President Sunil Kumar that the university should divest from companies that do business in Israel. The letter accuses Israel of fomenting “deliberate starvation” and “indiscriminate slaughter” of Palestinian civilians in a way that is a “plausible genocide.”
 
No statement to date has linked Ozturk to Hamas, or to defending Hamas. Her op-ed makes no mention of Hamas. Many reasonable people see charges of “genocide” against Israel and calls to divest from that country as expressions of antisemitism. Many others, also reasonable people, point out that Israeli bombs and bullets have recently surpassed the threshold of 50,000 men, women, and children killed. Supporters of Israel reply that it is Hamas that is using these innocents as human shields… and so on.
 
All this back-and-forth falls within the sphere of debatable facts and heated interpretations. The government’s actions against Ozturk, so far, do not.
 
Secretary of State Marco Rubio, when asked about this arrest, told CNN that if you are “involved in doing things like vandalizing universities, harassing students, taking over buildings, creating a ruckus, we’re not going to give you a visa.”
 
We couldn’t agree more, but we have to again ask: What does any of this have to do with Ozturk, student op-ed signer? What image are we broadcasting to the world about America as the beacon of liberty if she is deported without due process? Take a look at the reaction in Turkey and ask how this story serves American foreign policy? This is certainly a made-to-order issue for Turkish President Recep Erdoğan, a demagogue who often resorts to anti-American diatribes.
 
Worst of all, a denial of due process would give permission for the government to deconstruct speech of all sorts in search of a crime.
 
For all these reason, Protect The 1st urges the government to ensure that Rumeysa Orturk is afforded due process so the facts of her case can be made known, and a proper decision made on that basis.

​On this rock, you may build your church – so long as it is zoned properly.
 
The U.S. Department of Justice recently weighed in on a controversy between the City of Santa Ana, California, and Anchor Stone Christian Church. The Justice Department alleges the city violated the church’s rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA) when it denied the church’s zoning application to use space in the city’s professional district as a house of worship.
 
The Chinese-American church Anchor Stone purchased a property in 2022 in Santa Ana, intending to create a new, 99-seat house of worship. But because the district is zoned for professional uses, the church was required to obtain a conditional use permit (CUP). The city planning commission denied Anchor Stone’s request, despite the fact that, in the words of the Justice Department, “comparable secular assemblies like museums, science centers, and art galleries, are allowed to operate there by right without a discretionary permit.” There is even another church, operating under an approved CUP, right across the street in the same zoning district.
 
A subsequent appeal to the city council also failed.
 
Why the City of Santa Ana denied Anchor Stone’s application is less important here than the overall zoning scheme itself. That scheme places an enhanced burden on houses of worship relative to similar assemblies.
 
This flies in the face of RLUIPA, a federal law that prohibits local governments from "impos[ing] or implement[ing] a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution." Yet, that seems to be exactly what Santa Ana’s land use regime entails.
 
According to the statement of interest filed by the Justice Department, a prima facie RLUIPA claim must show “that the challenged regulation makes an express distinction between religious and nonreligious assemblies, regardless of whether those assemblies are similarly situated.” The burden then shifts to the local government to show why such unequal treatment is justified.
 
The Santa Ana zoning plan specifically allows nonreligious assemblies like “art galleries" and "museums and science centers,” which are – along with churches – defined as “assembly uses” under the California Building Code.
 
Anyone who’s dealt with zoning laws – particularly in heavily populated areas like Orange County – will understand how difficult and onerous they can be. But there’s a difference between having to jump through hoops and facing seemingly arbitrary and capricious discrimination on the basis of religion (as opposed to art), which seems to be viewpoint discrimination. Such bureaucratic adjudications can be a slippery slope, and they’re the very reason laws like RLUIPA exist in the first place.
 
We’ll be keeping a close eye on this controversy and its implications for the First Amendment.

New York state government came under the scrutiny of the U.S. Supreme Court in 2024 after Financial Services superintendent Maria Vullo pushed Lloyd’s of London and other insurers to cut ties with the National Rifle Association. In a unanimous opinion authored by Justice Sonia Sotomayor, the Court said that “Vullo’s communications with Lloyd’s can be reasonably understood as a threat or as an inducement. Either of those can be coercive.” 
 
The Empire State is at it again, weaponizing New York’s business fraud statutes to bring an enforcement action against 11 crisis pregnancy centers for speaking about “progesterone therapy,” which some studies suggest may be effective in reversing the effects of mifepristone in chemically induced abortions.
 
New York Attorney General Letitia James, who is spearheading the case, has called such centers “fake clinics.”
 
In August, three of those clinics sued in federal court to protect their First Amendment right to speak about progesterone. The court ruled in their favor, issuing a preliminary injunction and writing:
 
“…[T]he ‘very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech, and religion.’ To ‘this end, the government, even with the purest of motives, may not substitute its judgment as to how best to speak for that of speakers and listeners; free and robust debate cannot thrive if directed by the government.’ And this is particularly true ‘in the fields of medicine and public health, where information can save lives.’”
 
Now, the attorney general has appealed to the Second Circuit, and groups like Alliance Defending Freedom are stepping up in defense of crisis pregnancy centers and the First Amendment.
 
The attorney general’s actions certainly seem to constitute content and viewpoint-based discrimination. Perhaps conceding that point, General James argues that progesterone-therapy advocacy constitutes false or misleading commercial speech, despite the fact that, to quote ADF’s brief, the non-profit pregnancy centers’ speech “neither proposes a transaction nor bears any relation to the economic interests of the … plaintiffs or the women they serve….” As such, “the speech is wholly noncommercial and entitled to full First Amendment protection.”
 
As for whether or not advocating for progesterone therapy is effective against mifepristone, reasonable minds may disagree – but that doesn’t change the fact that there is peer-reviewed scientific literature supporting the claim. As the Second Circuit itself has held, “to the extent a speaker or author draws conclusions from non-fraudulent data, based on accurate descriptions of the data and methodology underlying those conclusions, on subjects about which there is legitimate ongoing scientific disagreement,” such statements cannot be deemed false under the First Amendment.
 
It seems reasonable, given New York’s recent track record and James’ outspokenness on the issue, to question whether prosecuting crisis pregnancy centers is politically motivated. But our concern at Protect The 1st is not ideological. It is that we cannot allow the use of our justice system to crack down on disfavored speech – and that would apply just as fervently to pro-choice speech in a red state as pro-life speech in a blue one. We will not stop until everyone in government appreciates that when the First Amendment says “shall make no law” prohibiting free speech, it actually means make no law.

​The mindfulness movement encourages people to focus on the now, to be in the moment as they work, but also as they walk, trim the shrubs, drive the kids to school, and boil the spaghetti.
 
How about mindfulness at the moment of one’s execution?
 
In Buddhism, the practice of Maranasati is to use mindful breathing to reach the deepest level of contemplation. Many Buddhists engage in meditation and other spiritual practices as they actually are dying.
 
One person who sought to do this was the recently departed Jessie Hoffman, 46, a convert to Buddhism who wished to engage in meditative breathing as he died. He was prevented from doing so, however, because of the manner of his death, which happened Tuesday night. Hoffman had been sentenced to be lawfully executed for first-degree murder and became the first person in Louisiana to have a mask strapped on his face to be asphyxiated by breathing nitrogen gas.
 
Hoffman faced the death penalty because he had, at age 18, kidnapped 28-year-old Molly Elliott, raped her, shot her in the head, and left her naked body by a river.
 
After 27 years of appeals, the U.S. Fifth Circuit Court of Appeals rejected a stay of Hoffman’s execution, dismissing the claim that death by nitrogen amounted to a violation of the Eighth Amendment’s prohibition of “cruel and unusual punishment.”
 
Four Supreme Court Justices, including Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson would have granted Hoffman’s application for a stay. Justice Neil Gorsuch wrote a short dissent explaining his reasoning.
 
Justice Gorsuch noted that no one “has questioned the sincerity of Mr. Hoffman’s religious beliefs.” This is relevant to the application of the Religious Land Use and Institutionalized Persons Act (RLUIPA), which forbids the government from violating a prisoner’s sincerely held religious beliefs. Justice Gorsuch took a lower court to task for issuing its own “find[ing] about the kind of breathing that Mr. Hoffman’s faith requires.”
 
Given the failure of the lower court to fully vet Hoffman’s claim – and the “Fifth Circuit’s unexplained omission” in doing so – Justice Gorsuch announced that he would have granted the stay and vacated the judgment. He would also have remanded the case for the Fifth Circuit to address Hoffman’s RLUIPA claim.
 
This is reminiscent of another case, Ramirez v. Collier (2020), in which the Court ruled in favor of John Henry Ramirez, a man on death row in Texas who petitioned to have his minister lay a hand on him as he received a lethal injection. The Court sided with Ramirez, 8-1. The prisoner’s minister was permitted, in fact, to place his right hand on Ramirez as he died.
 
On its face, the idea of being able to engage in meditative breathing while ceasing to breathe altogether sounds a bit absurd. Prosecutors are always alert to prisoners who manufacture religious objections to extend their lives. Hoffman had requested that he be executed by firing squad, which would, to say the least, have also interfered with his meditative breathing.
 
But Justice Gorsuch reminds us that the free practice of religion, at the most solemn moment of a person’s life, should command sufficient respect to fully explore an RLUIPA claim. At the very least, Hoffman’s claim deserved more consideration, even if it was ultimately rejected.

Ramirez’s attorney, Seth Kretzer, said it best: “The First Amendment applies in the most glorified halls of power and also in the hell of the execution chamber.”

​Last week, Miami Beach Mayor Steven Meiner threatened to terminate a lease agreement between the city and an art house film cinema after it screened the pro-Palestine film, No Other Land (which recently won the Oscar for best documentary).
 
In a newsletter to city residents, Meiner said, "I am a staunch believer in free speech. But normalizing hate and then disseminating antisemitism in a facility owned by the taxpayers of Miami Beach … is unjust to the values of our city and residents and should not be tolerated."
 
Meiner introduced a resolution before the city council to cancel the lease for O Cinema, which rents space from the city, and also terminate roughly $80,000 in grant funding that the city agreed to give the theater. The mayor pulled the resolution when only one commissioner supported it, and five opposed it.
 
We congratulate the mayor and the council for ultimately making the right call.
 
Regardless of whether No Other Land constitutes antisemitism (the film depicts the Palestinian experience in the occupied West Bank), Meiner’s stated intentions run directly into the First Amendment’s prohibition on “Congress shall make no law … abridging the freedom of speech.” Supreme Court opinions have long held that the First Amendment applies to government at all levels – federal agencies, states, and yes, city governments.
 
But what happens when government subsidizes speech, as Miami Beach does with its grant to the theater? Government subsidies often lead to the inevitable temptation toward viewpoint discrimination. The issue of restrictions on government-paid speech is one of the thorniest – and most poorly adjudicated issues in First Amendment jurisprudence.

Generally speaking, the government is permitted to “speak for itself” without necessarily being required to do so neutrally. In Rust v. Sullivan, for example, the U.S. Supreme Court held that the government could fund family planning programs while also prohibiting providers from discussing abortions. By contrast, in Legal Services Corp. v. Velasquez, the Court said a government program funding legal representation for indigent parties could not prohibit lawyers from helping those parties challenge welfare laws.
 
Amid these divergent cases, another one seems more on point than others. In Rosenberger v. Rector and Visitors of Univ. of Va, the Court distinguished between government speech and instances in which the government “does not itself speak or subsidize transmittal of a message it favors but instead expends funds to encourage a diversity of views from private speakers.”
 
In other words, when the government acts as patron, it may not prefer one lawfully stated view over another. That would seem to be the case here.
 
Initially, O Cinema CEO Vivian Marthell agree to cancel screenings of the film, noting “concerns of antisemitic rhetoric.” She later changed her mind, and it’s a decision which – agree or disagree with it – we support her right to make. ACLU of Florida legal director Daniel Tilley said, "The government does not get to pick and choose which viewpoints the public is allowed to hear, however controversial some might find them.”
 
That’s correct, but the issue of government speech remains tricky, as is the corollary issue of government subsidies for speech. It would help to get additional clarity on such cases in the future. One thing is clear – the best way to oppose a view you dislike is to speak out, not sue.

​Today, the Lone Star State is poised to embrace universal school choice. Is that a good idea?
 
With debate in Austin now underway, Texas legislators – who serve the nation’s second most populous state – might look to the third most populous state for answers to that question.
 
In 2023 Florida Gov. Ron DeSantis signed House Bill HB1, which established universal school choice. Today, Florida has more than 524,000 children participating in Florida’s school choice scholarship program for private school or home schooling. Florida also supports the expansion of charter schools, now enrolling more than 400,000 Florida youth.
 
Protect The 1st supports the school choice movement’s rapid expansion rolling across the states. We do so because we believe this policy gives parents something precious – the ability to choose schools that allow them to express their values across generations. Thus choice enhances the ultimate protection of free expression, as guaranteed by the First Amendment. We also hope it will return American school children to a solid appreciation of American history and civics – lessons lacking today in many public schools – that are essential to a healthy First Amendment society.
 
But none of this matters if – as we’ve asked before – school choice doesn’t work. Does it actually improve educational outcomes?
 
Gov. DeSantis writes in Wednesday’s Wall Street Journal that charter school students, a population that is majority low-income, perform above their peers in traditional school districts. The return of core principles in teaching math, science, history, and reading has allowed the Sunshine State to see marked improvement in test scores, so much so that The U.S. News & World Report ranks Florida first in the nation in education among the states for the past two years.
 
That’s something to emulate as well as celebrate. Tennessee and Wyoming recently joined the universal school choice club. With the addition of Texas, the school choice movement should be well on its way to becoming a nationwide policy.

​We recently reported on the results of a Becket Fund for Religious Liberty survey, the Religious Freedom Index finding that 75 percent of Americans accept and support the freedom for people to choose (or not choose) a religion – up nearly 20 points since 2020. Now the Pew Research Center’s recently released Religious Landscape Study, raises a few red flags about the future of continued support for the free exercise of religion in America.  

While Pew’s findings are something of a mixed bag for the prospect of religious affiliation, Protect The 1st is concerned with the implications of declining religiosity for the protections of the First Amendment. When fewer people value faith, the less likely it becomes that our country will steadfastly honor expressions of religious beliefs in accordance with the Constitution. In fact, as religious adherents become a minority, the more vital it becomes that we protect them and their activities.

First, here are some top-line findings from Pew, many of which religious people may find somewhat reassuring:

• Following years of decline, the number of Americans identifying as Christian is around 62 percent. The figure constitutes a marked decrease from the first such study concerning the nation’s majority religion. In 2007, 78 percent of Americans viewed themselves as Christian.

 

• At the same time, over the last five years, “the Christian share of the adult population has been relatively stable,” oscillating between 60 percent and 64 percent. The latest figure falls squarely in the middle of that range.

 

• Spiritual beliefs are far more common, with 86 percent of respondents affirming belief in a soul and 83 percent of respondents attesting to a faith in God or in a “universal spirit.”

Now for the red flags – despite indicators suggesting a stabilization in patterns of religious affiliation, Pew’s findings suggest a real possibility of continued declines over the coming years because young people are significantly less likely to be religious than older generations. According to the survey, only 46 percent of respondents in the 18-24 demographic identify as Christian versus 80 percent of adults in the 74+ demographic.

“Generational replacement,” the study notes, could have the effect of upending recent stabilization patterns.  

Pew’s survey surprisingly found that more than one-half of Americans believe religion either does more harm than good, or only does good and harm in equal amounts. Only 44 percent believed it was a clear force for good – no doubt a deep decline in historical terms. A whopping 83 percent of religiously unaffiliated people say that religion does at least as much harm as good. Pew’s study further provides that “[c]ompared with 2014, Americans now express less positive views of churches and other religious organizations.”

These are trends that could inspire infringements on the free exercise of religion. As public perceptions of religious organizations worsen, these perceptions create an unfavorable environment for religious expression of all sorts – even if religious organizations ultimately prevail against legal challenges in court.

For those of us who defend the free exercise of religion – the right to practice any religion or hold no religion at all – it seems clear that we must navigate a complex landscape with growing cultural antipathy towards religious institutions. This makes it more important than ever that we continue to honor our foundational precepts by educating people about the Bill of Rights and opposing those who would use state power to scale those rights back.
​
The Supreme Court of the United States will soon hear Mahmoud v. Taylor, a case that concerns the rights of parents in Montgomery County, Maryland, to opt their children out of teachings about sexuality contrary to their religion. The Court is also still considering whether to take up the case of Apache Stronghold v. United States, which seeks protection for the long-recognized sacred site of the Apaches in Arizona, whose very existence is under threat by a mining project that would obliterate this site.
 
We hope these and other cases will be resolved in favor of the First Amendment. In the meantime, Protect The 1st will keep following the trend lines, while continuing to unwaveringly advocate for the future of free exercise.

​In 1927, Supreme Court Justice Louis Brandeis wrote that the best remedy for “falsehood and fallacies,” besides education, “is more speech, not enforced silence.”
 
Almost a century later, enforced silence became the favored solution of government censors, from the FBI to the State Department, who secretly jawboned social media platforms to remove posts the government believed to be disinformation from Russia, misinformation, or dangerous information. As Mark Zuckerberg made clear in his recent interview with Joe Rogan, when a highly regulated industry gets angry calls demanding removal of content from the government, it is not taken as a gentle suggestion. Thus for several years threads of the national discussion were quietly pulled, with millions of social media consumers none the wiser.
 
That era is now over.
 
President Trump’s executive order forbidding censorship and the shuttering of government agencies, like the State Department’s infamous Global Engagement Center, prevent a restart of the government censorship regime, at least for the foreseeable future.
 
But the complex problems of content moderation still remain. The First Amendment restricts government control of speech, but it does not forbid social media companies from moderating the content they host. Meta says it will continue the content moderation for material that is obscene, violent, and extreme. But otherwise, the way is open for controversial speech of all sorts.
 
How, then, will assertions be vetted? Not by third-party fact-checkers. That model, too, is broken. Zuckerberg agreed that the fact-checking process was subjective and often warped by partisan bias. The way forward for Meta’s Facebook, Instagram, and Threads, then, is to promote more speech, by allowing the public to test ideas. Meta is doing this with the incorporation of the same open-source algorithm that powers X’s community notes. That technology is now being tested by Meta across the country, with 200,000 people already signed up to become Community Notes contributors.
 
Crowd-sourced factchecking will undoubtedly be imperfect. Social media platforms will have to be on guard for organized efforts to game the new system. But overall, Community Notes is the superior solution. It follows speech with more speech – and then leaves it up to us to decide what is fair and true, just as we do all the time at the American dinner table.

​Should anti-Israel activist Mahmoud Khalil have his green card pulled so he can be deported? Only if he is given due process before a judge or other government official, as a legal resident of the United States.
 
Expelling Khalil is what the Trump Administration has set out to do for his leading role in protests last spring on the Columbia University campus attacking Israel and purportedly praising Hamas. And, as the lead negotiator and spokesman for the Columbia University Apartheid Divest (CUAD), Khalil might be deportable for violating the law governing green card holders. The law makes a green card holder inadmissible for residency if he “endorses or espouses terrorist activity” or represents a group with the same goal.
 
An appearance before a judge or other unbiased official is the only way to winnow out the facts of this case, namely the degree of Khalil’s participation that led to the illicit occupation of parts of Columbia University as a “Jew-free” zone, and giving Jewish students and faculty legitimate reason to fear for their safety. And what, specifically, did he say and endorse? Only an unbiased decision-maker can determine if Khalil’s anti-Israel, pro-Hamas protests veered into endorsement of terrorism, which would lead to his ejection from this country, or were simply political speech protected by the First Amendment.
 
We appreciate that due process for a Hamas-sympathizer is the tiniest of violins. But it must be played. As a legal resident, Khalil deserves only one thing – a fair opportunity to account for his actions and to answer accusations. We cannot lose sight of the bigger picture: If Khalil loses those due process rights, we all lose something precious.

​Federal Judge Beryl Howell made a necessary call Wednesday when she issued a temporary restraining order blocking parts of the March 6 executive order that sanctioned the entire Perkins Coie law firm.
 
“We can’t recall a similar White House order from any president,” The Wall Street Journal opinion editors wrote. We can’t either. If the massive enforcement powers of the federal government can be used for such blunderbuss political retaliation, it would violate the First Amendment rights of law firm personnel and harm the due process rights of their clients. It would also set a precedent that conservatives and MAGA supporters would surely live to regret whenever a progressive administration returns to office.
 
To be fair to the White House, some former Perkins Coie lawyers attracted justifiable criticism for facilitating the dubious dossier and false reports to the FBI general counsel that cast then-candidate Donald Trump as a Russian agent. An investigation by the Justice Department Inspector found that the dossier was a sloppy, gossip-laden compendium of misstatements, used by the FBI (which knew the dossier was unreliable) to obtain four warrants to surveil Trump campaign advisor Carter Page, and through him, the campaign itself.
 
Still, this doesn’t begin to justify an executive order that bars more than 1,000 Perkins Coie lawyers from entering federal buildings and restricts government contractors from working with their firm. The vast majority (if not all) of the current Perkins Coie attorneys working on thousands of cases today had nothing to do with the controversies surrounding the Trump-Russia accusations. And the two Perkins-Coie partners who were responsible for the creation and spreading of these accusations left the firm in 2021. So the executive order plainly overreaches.
 
Indeed, if the full executive order had been kept in place, Perkins Coie lawyers would have been barred from all federal buildings, harming their ability to represent clients. And if the order included courthouses, it would have essentially disbarred them as litigators – all without any legal process to determine whether any particular lawyer merited such punishment. Such orders harm not just the firm’s lawyers, but also their thousands of clients who depend on them for effective representation.
 
All Americans deserve representation. And law firms – even if you detest their politics – have a First Amendment right to lean woke, MAGA, libertarian, or vegetarian.
 
This controversy brings to mind Paul Giamatti’s portrayal of John Adams, in HBO’s magnificent series of the same name. Giamatti portrayed Adams stepping forward to defend British soldiers standing trial for murder after the Boston massacre. When challenged by Sam Adams that “this is a time for choosing sides,” John Adams replied, “I am for the law, cousin. Is there another side?”

​Houston’s Discovery Green Park is an urban jewel, a 12-acre site with playgrounds, skating rinks, a jogging trail, a music venue, yoga classes, and more. It has everything, except respect for the free exercise of religion.
 
This park has seen no lack of other kinds of protests, from pro-choice demonstrations to anti-NRA protests. But when Dr. Faraz Harsini and Daraius Dubash dared to hold an educational series about factory farming, they each acquired a pair of shiny new handcuffs. Their crime? They showed eye-catching but harmless images of industrial farming practices.
 
Dr. Harsini’s work on animal rights emerges from his work as a scientist. Dubash’s advocacy springs from the Hindu school of Advaita Vedanta. For him, ahimsa, or nonviolence against other living things, is a holy teaching. His invitation to tell passersby about animal cruelty was an expression of his deeply held religious beliefs.
 
Is such preaching allowed in a public park?
 
That question allowed Protect The 1st and the Harvard Free Exercise Clinic to embark on a historical quest in an amicus brief in support of Daraius Dubash in his appeal before the U.S. Fifth Circuit Court of Appeals. While the Foundation for Individual Rights and Expression and other groups represent Mr. Dubash and Dr. Harsini before the Fifth Circuit, we thought this was an excellent opportunity to do a deep dive into American history and the question of how religion is protected – or not – in public places.
 
This is an issue that hearkens back to the very beginnings of America.
 
We all know that Puritan settlers fled religious persecution to find freedom on the shores of New England. It wasn’t long, however, before the persecuted became the persecutors. Puritans publicly beat Quakers “like unto a jelly,” cutting off their ears, branding them, and putting them in outdoor stockades. Refugees from the theocracy in Massachusetts carried a heightened appreciation for the rights of others. In Quaker Rhode Island and New Jersey, guarantees of “free exercise” and “liberty of conscience” took root. In 1681, King Charles II famously granted William Penn a charter to found the Province of Pennsylvania as a “holy experiment” in tolerance.
 
Later, the itinerant preachers of the First and Second Great Awakenings – religious revivals that bracketed the Founding – spurred a transformation of American public spaces into places where religious expression flourished. One famous traveling proselytizer, George Whitefield, recognized that disaffected believers “who would not come to a church to hear his message would go to a park.” Whitefield drew a record-breaking crowd of 20,000 to Boston Commons, where he spoke within view of the site where Quaker preachers had earlier been hanged.
 
Then came the Methodists, preachers outside the mainstream who spoke on public land because houses of worship and school buildings were closed against them, leaving them only “the street corner, the public parks, or gardens, the fields, or woods.”
 
As public tolerance grew, so did legal protection for preaching in public. Thomas Jefferson provided the model of the natural right of the free exercise of religion in Virginia, later established for the nation in the First Amendment. The Supreme Court in the 20th century would uphold these rights for the Jehovah’s Witnesses in 14 out of 19 cases.
 
Now this right is being tested again, this time for an American preaching ahisma, aided by a portable television, in Houston. We find once again, that when religious expression is violated, the rights of all Americans are at stake. That is our message to the Fifth Circuit.
 
To learn more about the evolution of American law on the free exercise of religion in public places, from colonial times to today, check out our brief.

​When the government decides which religious practices qualify as truly “religious” and which do not, it is such a clear violation of the Establishment Clause of the First Amendment that it is practically parody. Yet, that’s exactly what happened in Catholic Charities Bureau v. Wisconsin Labor & Industry Review Commission, set to be heard by the U.S. Supreme Court in a few weeks.
 
These charities have reason to be optimistic. The Supreme Court has in recent years cast a skeptical eye on restrictions on the free exercise of religion. And if the early briefs filed against these charities are any indication, the case against them is very weak.
 
The Case
Catholic Charities Bureau is the 100-year-old social ministry arm of the Diocese of Superior, Wisconsin. The organization wishes to be exempted from the state’s unemployment program – allowed for organizations that are “operated primarily for religious purposes” – in order to participate in the separate but similar Wisconsin Bishops’ Church Unemployment Pay Program. The Wisconsin Supreme Court ruled against the group, finding that Catholic Charities’ activities did not constitute “typical religious activities.” It further found that because Catholic Charities’ mission “can be provided by organizations of either religious or secular motivations,” its services are not inherently religious.
 
What’s at Stake
Taken literally, the Wisconsin standard could mean a religious service is not religious if someone else can light a candle or burn incense. This standard puts government in the position of telling religious organizations how to make fine theological distinctions. Unless reversed, the Wisconsin Supreme Court has opened a gaping legal vulnerability for the free exercise of religion.
 
Adjudicating an organization’s degree of religiosity places courts squarely within the realm of “excessive entanglement” prohibited by the First Amendment, while also subjecting religious groups to wrongheaded interpretations of their activities. Catholics, for example, are compelled by scripture to aid the needy.
 
Jumbled Arguments Against the Charities
The Supreme Court will hear arguments on March 31. Ahead of that hearing, several groups have filed amicus briefs in opposition to Catholic Charities’ position.
 
One of those, the Freedom From Religion Foundation, argues that fact-based inquiries into an organization’s activities are commonplace and do not constitute excessive entanglement of the state with religion. Yet, FFRF conveniently elides the reality of what such fact-based inquiries would entail. To quote dissenting justice Rebecca Grassl Bradley of the Wisconsin Supreme Court, such arguments would place courts in the “constitutionally tenuous position of second-guessing the religious significance and character of a nonprofit’s actions.”
 
Many courts, recognizing just how sticky these wickets are, accordingly focus on whether an organization’s activities are motivated by its sincerely held religious beliefs. It’s a holistic test that is far preferable to adjudicating what is “typical” for a religious behavior. “When you give a banquet,” Jesus said, “invite the poor, the crippled, the lame and the blind and you will be blessed.” Providing in-home health care, housing, and childcare services – no less than banquets – often does not include explicit proselytizing. But these acts are still religiously motivated activities.
 
We often align with the American Civil Liberties Union but find ourselves on opposite sides here. The ACLU is concerned about opening a floodgate of implications in applying the religious motive test. ACLU fears that a host of religion-adjacent organizations will also seek to opt out of unemployment taxes, prompting legislatures to crack down on exemptions. This is a reach. Any reasoned investigation of the present case would lead to the conclusion that charity is inherent to the Catholic faith. An analysis of whether a hardware store affiliated with a synagogue meets the exemption criteria would doubtless lead to a different conclusion.
 
A third amicus brief by American Atheists Inc., is a hodgepodge of mischaracterization and speculation. This brief seems more interested in adjudicating the very existence of religious exemptions rather than the test at the heart of this case. They argue that Catholic Charities’ position “violates the Establishment Clause by making a tax exemption contingent solely on a profession of religious belief,” mischaracterizing both Catholic Charities’ practices and the Supreme Court’s opinion in Walz v. Tax Commission of the City of New York, which plainly allowed tax exemptions for religious organizations when offered in the spirit of “benevolent neutrality.”
 
American Atheists goes on to ascribe nefarious and unfounded motives to Catholic Charities, suggesting the group wants states to “treat unemployed workers differently based on whether or not they chose to work for charities that espouse – even nominally – a religious motivation for their efforts.” This turns the law on its head, judging the religious character of an organization by its employees, not its associational doctrine.
 
Again, American Atheists seems focused on undermining the very premise of tax exemptions for religious organizations, which are already recognized as constitutional. The issue at hand is the appropriate test for determining religious character – not whether exemptions should exist in the first place.
 
American Atheists further makes the odd and speculative argument that Catholic Charities’ position would somehow prompt the state to use its taxation power to coerce professions of religious belief. We disagree. States are highly motivated by revenue, and it seems unlikely that they would seek to further expand tax exemptions in order to prop up one religion or another. In that extreme scenario, a governmental party would not survive one day in court. 
 
Most important is a widening lower court split on what constitutes “typical” religious practice. That is the wrong metric. It is clear that for a Catholic, charity is central to the free exercise of religion. If you have any doubts on that score, we refer you to the words of our expert witness quoted above.

In an amicus brief to the Supreme Court on Monday night, Protect The 1st represented 66 Members of Congress that showed the U.S. Supreme Court why it should reverse a Fourth Circuit ruling in Mahmoud v. Taylor that rejected the First Amendment objections of parents whose children, some as young as three, cannot be opted out of exposure to material on moral issues controversial with many parents. In its brief, the Protect The First Foundation showed that it is unconstitutional to deny parents this choice, and that “federal law has consistently protected parental rights in the educational arena.”
 
Background
In 2022, the Montgomery County school board embraced books that promoted pronoun preferences, pride parades, and gender transitioning for young students. One book tasks three- and four-year-olds to search for images from a word list that includes “intersex flag,” “drag queen,” “underwear,” “leather,” and a celebrated activist/sex worker. 
 
When some Muslim and Christian parents sought to opt out their children from these teachings, one board member told them that claiming these books “offend your religious rights or your family values or your core beliefs is just telling your kid, ‘Here’s another reason to hate another person.’” On appeal, the Fourth Circuit held that because there was no evidence of either coercion or a direct penalty on these parents’ religious faith if their children were required to participate in these one-sided portrayals of questions about morality, this case involved no burden on their First Amendment rights.
 
An Absurd Outcome
The Protect The 1st brief demonstrates that there is nothing in federal law or the Court’s precedent that remotely supports the Fourth Circuit’s decision to deny parents the choice to keep their children out of such indoctrinating instruction.

• The Board argued that Title IX of the Educational Amendments of 1972 required it to deny notice or the right to opt out. Protect The 1st told the Supreme Court: “Yet the Board failed to quote or even cite a single provision of Title IX for its claim. Nor could it. The statute’s plain language makes clear that a school’s duty is to not itself discriminate.”

 

• The Fourth Circuit shared the Board’s view that the Supreme Court’s decision in Bostock v. Clayton controlled this expansive interpretation of Title IX. In fact, in Bostock, the majority – which ruled on whether an employer who fires someone for simply being homosexual or transgender – addressed employer discrimination, not educational policy. The majority did “not purport to address bathrooms, locker rooms, [dress codes,] or anything else of the kind.”

 

• In Bostock, the Court went out of its way to display concern that this opinion did not trample on religious liberty: “We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society.”

Neither the statute’s text nor Supreme Court precedent support the Board’s claims or the Fourth Circuit’s opinions.
​

• The current opinion stands directly opposed to carefully crafted laws passed by Congress over the past half-century to protect the religious freedom rights of parents. Courts have also regularly applied the Religious Freedom Restoration Act to protect parental rights.

“It seems clear to us that the excuses given by the board and the court, relying on federal law and Supreme Court precedent, border on the frivolous,” said Erik Jaffe, President of Protect The 1st. “Both Congress and the Supreme Court have routinely supported parental choice in matters involving the education of their children. And an opt-out for parents has long been recognized as a non-disruptive remedy that protects the rights of parents.

“We fully expect the Supreme Court to agree.”

​Protect The 1st champions school choice on First Amendment grounds. We support it as a way for parents to choose schools that reflect their values, and to extend those values across generations. It is sweeping the nation, with Wyoming becoming the latest state to embrace universal school choice.
 
But some have nagging doubts – in budgetary and educational terms, does school choice actually work?
 
With the recent reintroduction of the federal Educational Choice for Children Act in the 119th Congress – and with Texas on the verge of becoming the latest state to embrace universal school choice – this seems like a good time as any to point out that school choice improves educational outcomes in both public and private schools.
 
Critics of school choice worry that school choice programs will bleed public schools and drain state treasuries. This has not been the experience of Arizona, which has had universal educational school choice for several years now. The Arizona Department of Education reported late last year that it had a $4 million funding surplus. This happened despite larger enrollments than the experts predicted.
 
Arizona is not unique. Martin Lueken, director of Fiscal Research and Education Choice at EdChoice, surveyed fiscal data since 2018, analyzing 40 private educational choice programs in 19 states plus the District of Columbia. He found that schools save money when students depart for a private option, funded by education savings programs, school voucher programs, and tax-credit scholarship programs.
​

• Lueken found that school choice programs, on average, saved state and local taxpayers between $1.80 and $2.85 for every dollar invested.

 

• Far from harming public schools, school choice has long been associated with higher student achievement. A study from the University of Arkansas shows “a strong and statistically significant association is clear between education freedom and both academic scores and academic gains.”

Results like these, with Texas Gov. Greg Abbott publicly itching to sign legislation now being debated in Austin, ought to put wind in the sails of a federal effort. The Educational Choice for Children Act was recently introduced in the House by Rep. Adrian Smith (R-NE) and Rep. Burgess Owens (R-UT), and in the Senate by Sen. Bill Cassidy (R-LA).
 
Rep. Smith said that this bill will “empower parents with more options, acknowledging that they have the final say in what educational setting is best for their children.” Sen. Cassidy said, “more freedom empowers parents and allows American children to thrive in school.”

• After decades of declining test scores, it is time to rethink American education for states and the nation. Consider Pennsylvania, where just 33 percent of fourth graders performed at or above the National Assessment for Educational Progress proficient reading level in 2024. Low-income students are particularly disadvantaged. They had an average score that was 25 points lower than that for middle- and high-income students. Why should some students do well, and others suffer because of the state or the zip code their families happen to live in?

We know what doesn’t work – public school systems unchallenged by competition. We know what does work – competition improves outcomes. It also serves parents, as Rep. Smith put it, by giving parents the final say in choosing the best educational setting for their children.
 
Why not make school choice the law of the land?

​President Trump on Tuesday declared on Truth Social:
 
“All Federal Funding will STOP for any College, School, or University that allows illegal protests. Agitators will be imprisoned/or permanently sent back to the country from which they came. Americans students will be permanently expelled or, depending on on [sic] the crime, arrested. NO MASKS! Thank you for your attention to this matter.”
 
There is less to unpack here than there is to fill in. The basic question raised by this post is what the Trump Administration will consider an “illegal protest”?
 
Absolute clarity is needed on this point. A protest on behalf of Gazans, or even in favor of Hamas, is not an illegal protest. It is as fully protected by the First Amendment as would be any protest. Just because we believe an opinion is off-putting, stupid, or vile does not make it a crime.
 
A good example of an illegal protest can be seen in UCLA’s toleration of protesters harassing Jewish students and declaring “Jew-free zones” on campus. Jews were denied access to all parts of the UCLA campus unless they renounced their faith. That protest broke the letter of the law and was fascist in its heart. Federal judge Mark Scarsi told UCLA in no uncertain terms that the university had to act against these illegal protests. The judge said that the attacks on Jewish students were “unimaginable” and “abhorrent to our constitutional guarantee of religious freedom.”
 
Another needed distinction is whether an institution is public or private. The First Amendment only restricts the power of the government to abridge speech. This means that a public university like UCLA has an obligation to lean hard to give maximal space for speech, even vile speech. But go up Highway 101 to Stanford University, and you find a private institution with more leeway to define what is or is not acceptable speech on campus. But just a little. Stanford University accepts federal funds, which comes with some strings about any limits on speech. Moreover, California’s Leonard Law mandates that private schools respect speech that would be protected off campus.
 
So again, what is an illegal protest? It is one in which protesters defy time, place, and manner restrictions of the administration of their college or university to take over a part of a campus, to occupy a building, to engage in violence or destroy property, or to harass students and faculty.
 
We trust that Department of Education Secretary Linda McMahon will instill these distinctions in President Trump’s directive.

​What do we make of the recent move by President Trump to punish the lawyers who are defending former special counsel Jack Smith, now believed to be under investigation?
 
The president’s order suspends – pending a legal review – the security clearances of these lawyers and orders agencies to “review and terminate” any federal contracts of their law firm, Covington & Burling LLP, to the “maximum extent” permitted by law. Depending on how it is implemented by the Office of Management and Budget and other agencies, this order could end up violating multiple aspects of the First Amendment.
 
Before we get into why that is so, we first want to make a distinction between this order and the president’s recent revocations of the security clearances of former CIA officials. These officials used their presumed access to classified information to inject themselves into the Hunter Biden laptop controversy two weeks before the 2020 election, claiming that The New York Post story on that subject had “all the classic earmarks of a Russian information operation.”
 
Former government officials retain security clearances to help advise current government officials. Such clearances are not intended to create a false perception of secret knowledge to skew public debate and elections.
 
As it turned out, while many media outlets simply accepted the disinformation claims, The Post had done something that no other media outlet did – solid, investigatory journalism. The previous knee-jerk outlets now admit that the contents of the laptop concerning foreign dealings by the Biden family was authentic. Suspending the security clearances of those who use their access for personal or political purposes, rather than in the aid of national security, if done evenhandedly, is an acceptable narrowing of the privilege of access.
 
Unfortunately, the administration’s announcement that it seeks to punish attorneys with the law firm of Covington & Burling for representing Jack Smith is a different kettle of fish.
 
The order aims to suspend security clearances from a Covington partner and other attorneys that President Trump believes may have been a part of Jack Smith’s team as a special counsel. Law 360 reports that no Covington attorneys show up as a part of Smith’s official investigative team, though it’s possible they helped out on the side. A search of a government database fails to show any government contracts with Covington.
 
President Trump’s order has already been criticized by legal groups. For example, the New York Council of Defense Lawyers said in a statement that this order “is a brazen attack on the defense function and the rule of law.” Perhaps so – assuming Jack Smith is actually under investigation by the Justice Department (DOJ hasn’t confirmed this) and Covington is defending him in that investigation.
 
If that is true, then we would add that the order appears to be a viewpoint discriminatory punishment of the Covington firm, based on their defense of a person who (in Trump circles) is highly unpopular. Depending on how it is implemented, moreover, the order could end up slapping an unconstitutional condition on the privilege of security clearances, and an interference with the right to petition the government in the courts or before the other branches.
 
You may believe that Smith’s investigation was justified by the events of Jan. 6, 2021, or you may believe that Smith’s long inquiry weaponized the law. But Smith, like any potential defendant or public or private person, is entitled to a defense. And Covington lawyers also have a First Amendment right to provide the defense, whether they do so for $1,000 an hour or for bubble gum wrappers. Punishing particular attorneys and their firms for providing a legal defense, or assisting with a First Amendment-protected defense, strikes at the heart of the American system of justice, due process, and First Amendment freedoms.
 
Yet the president’s order is not as harsh as some media outlets have reported it to be. It doesn’t outright “strip” these lawyers’ security clearances. Instead, it “suspends” their clearances pending a review of their work, and it specifies that any punishments ultimately imposed must comply with “applicable law” – including, presumably, the First Amendment. We can hope the OMB and other agencies charged with implementing the President’s order will bear that in mind as they proceed. 
 
Ensuring the neutrality of the law, and of the powerful institutions of government, is a noble and essential goal that President Trump embraced in his executive order on free speech. Remaining true to that goal, even when it involves persons and views you deeply oppose, takes hard work and vigilance. But such is the burden of our constitutional system, and adherence to those principles builds the legacy of those who put in that work and remain vigilant even when it would be easier not to.