​The Oklahoma Supreme Court ruled 7-1 this week against allowing public charter funds to support a virtual Catholic school, holding that the funding of online religious schools by the state to be unconstitutional.
 
“Today’s ruling is very disappointing for the hundreds of prospective students and their families from across the state of Oklahoma who desired the educational experience and promise of St. Isidore of Seville Catholic Virtual School,” the Archdiocese of Oklahoma City said in a statement. “We will consider all legal options and remain steadfast in our belief that St. Isidore would have and could still be a valuable asset to students, regardless of socioeconomic, race, or faith backgrounds.”
 
Our take is that the Oklahoma Supreme Court’s opinion is buttoned down, logical, and eminently overturnable. It relies on that state’s version of a Blaine Amendment, a movement that gathered momentum when American politics was infected with anti-Catholic bigotry. In our view, publicly funded charter schools are similar to voucher programs, which are often given to religious schools that – in every state – must meet mandated standards in English, math, history, science, and other subjects.
 
Taking the state’s money, in our view, would make St. Isidore a publicly funded school, but not a “public school.”
 
Justice Dana Kuehn made a similar point in her lone dissent:
 
“St. Isidore would not become a ‘state actor’ merely by contracting with the State to provide a choice in educational opportunities. By allowing St. Isidore to operate a virtual charter school, the State would not be establishing, aiding, or favoring any particular religious organization. To the contrary: Excluding private entities from contracting for functions, based solely on religious affiliation, would violate the Free Exercise Clause of the First Amendment to the United States Constitution.”
 
The Oklahoma State Attorney General, Gentner Drummond – the petitioner filing against St. Isidore – likened the inclusion of a Catholic school to a private takeover of the operations of the Oklahoma Highway Patrol, rebranding it as the “Catholic Church Highway Patrol.” (Imagine the fun comedians would have with that, being pulled over for confession and then having the officer ask you, “sir, you know it’s Friday, is that meat on your breath?”)
 
Justice Kuehn latched on the ridiculous nature of this metaphor. She wrote: “The logical flaw is that, unlike law enforcement, enrollment in a charter school is fundamentally a choice for parents to make. St. Isidore would not be ‘taking over’ any function that is traditionally the exclusive realm of the State. It would exist alongside state-mandated secular options.”
 
Justice Kuehn is right. The issue here is that inclusion of St. Isidore would give the people of Oklahoma a choice in picking a school that would adhere to state-mandated standards, giving parents a choice for a rigorous education and the continuation of their cherished values.
​
Justice Kuehn pointed to the U.S. Supreme Court’s striking down of a Montana Supreme Court opinion, Espinoza (2020). In that case, the Supreme Court ruled that a state-based scholarship program that provides public funds to allow students to attend private schools cannot discriminate against religious schools under the First Amendment’s Free Exercise Clause.
 
Justice Kuehn predicts a similar result.

​The expected landmark, decision-of-the-century, Supreme Court opinion on government interaction with social media content moderation and possible official censorship of Americans’ speech ended today not with a bang, not even with a whimper, but with a shrug.
 
The Justices ruled 6-3 in Murthy v. Missouri to overturn a lower court’s decision that found that the federal government likely violated the First Amendment rights of Missouri, Louisiana, and five individuals whose views were targeted by the government for expressing “misinformation.”
 
The Court’s reasoning, long story short, is that the two states and five individuals lacked Article III standing to bring this suit. The court denied that the individuals could identify traceable past injuries to their speech rights. In short, a case that could have defined the limits of government involvement in speech for the central media of our time was deflected by the court largely on procedural grounds.
 
Justice Samuel Alito, writing a dissent signed by Justices Clarence Thomas and Neil Gorsuch, implicitly criticized this punt, calling Murthy v. Surgeon General “one of the most important free speech cases to reach this Court in years.” He compared the Court’s stance in this case to the recent National Rifle Association v. Vullo, an opinion that boldly protected private speech from government coercion.
 
The dissenters disagreed with the Court on one of the plaintiffs’ standing, finding that Jill Hines, a healthcare activist whose opinions on Covid-19 were blotted out at the request of the government, most definitely had standing to sue. Alito wrote:
 
“If a President dislikes a particular newspaper, he (fortunately) lacks the ability to put the paper out of business. But for Facebook and many other social media platforms, the situation is fundamentally different. They are critically dependent on the protections provided by §230 of the Communications Decency Act of 1996 … For these and other reasons, internet platforms have a powerful incentive to please important federal officials …”
 
We have long argued that when the government wants to weigh in on “misinformation” (and “disinformation” from malicious governments), it must do so publicly. Secret communications from the government to the platforms to take down one post or another is inherently offensive to the Constitution and likely to lead us to a very un-American place.
 
Let us hope that the Court selects a case in which it accepts the standing of the plaintiffs in order to give the government, and our society, a rule to live by.

​Colorado's attempts to exclude Catholic preschools from its universal preschool program has faced another legal setback. A federal court in Colorado ruled that the state violated the Constitution by excluding religious schools based on their requirements for religious affiliation. This decision follows a lawsuit filed by St. Mary’s and St. Bernadette’s Catholic preschools, supported by the Becket Fund for Religious Liberty.
 
The court's 101-page opinion criticized Colorado's approach, stating it “created an unworkable scheme that breaches the appropriate limits on state power.” The court found no compelling interest for the state's exclusion of Catholic preschools. This decision marks the second federal court ruling against Colorado's universal preschool program.
 
In 2022, Colorado launched its universal preschool program, aiming to provide 15 hours of free education per week to preschoolers at private or public schools chosen by their parents. Despite the program’s intent to be inclusive, the state's Department of Early Childhood imposed restrictions that excluded all Archdiocesan Catholic preschools, affecting over 1,500 children at 36 schools.
 
The lawsuit argued that excluding these schools deprived families of critical resources based on their religious beliefs. The Supreme Court has repeatedly affirmed that the government cannot deny public benefits due to religious affiliation. This principle was upheld in the recent ruling, reinforcing the notion that “universal” should indeed mean universal.
 
The court's decision underscores the importance of religious freedom in public benefit programs. As Nick Reaves, counsel at Becket, remarked, “Of course a Catholic school shouldn’t be punished for caring about its students’ religion.” The ruling emphasized that the state's exclusionary practices are not only unconstitutional but also unjust.
 
At St. Bernadette’s, 86 percent of students qualify for free and reduced-price school meals, and 64 percent are English as a Second Language learners. St. Mary’s also supports many families through scholarships and tuition discounts.
 
This legal victory for Catholic schools in Colorado may face further challenges. The state could appeal the decision to the Denver-based U.S. Court of Appeals for the Tenth Circuit. However, the ruling provides a strong precedent against religious discrimination in public programs.
 
Colorado's attempt to exclude religious schools from its universal preschool program has been firmly rebuked by the courts. This case reaffirms the constitutional principle that public benefits cannot be denied based on religious beliefs, ensuring that all families have the freedom to choose the best educational environment for their children. Protect The 1st will be watching this case closely.

​A recent ruling by the Fourth Circuit Court of Appeals has struck a severe blow to the cause of parental rights and religious liberty. This contentious case revolved around the Montgomery County Board of Education's controversial decision to deny opt-out requests for certain LGBTQ+ inclusive texts used in K-5 classrooms.
 
As we’ve reported, parents argued that this policy infringed upon their First Amendment rights to shape their children's education regarding sexuality and gender, contending that it forced them into an untenable position: compromise their deeply held religious beliefs or withdraw their children from public education altogether.
 
The Fourth Circuit Court of Appeals affirmed the district court's decision, denying the parents' request for a preliminary injunction. The court concluded that the parents failed to demonstrate a substantial burden on their religious exercise, determining that exposure to the inclusive texts did not amount to a violation of their religious rights. The ruling emphasized that the school's curriculum did not compel students to affirm or renounce any beliefs, but merely exposed them to diverse perspectives.
 
Judge A. Marvin Quattlebaum issued a strong dissent in this case that should be required reading for anyone in need of a better understanding of the foundational importance of religious liberty.
 
Judge Quattlebaum criticizes the majority for not recognizing the burden placed on parents' religious rights. He asserts that “the board's decision to deny religious opt-outs burdened these parents' right to exercise their religion and direct the religious upbringing of their children by putting them to the choice of either compromising their religious beliefs or foregoing a public education for their children.”
 
A key point in Judge Quattlebaum's dissent is his emphasis on the non-neutrality and lack of general applicability of the board's actions. He argues that the board's decision was not neutral because it selectively imposed a burden on religious practices while accommodating other types of opt-outs, such as for Halloween or Valentine's Day celebrations. He asserts that the board's actions were discriminatory against religious beliefs, which is contrary to the First Amendment's protections. The judge writes:
 
“The policy was neither neutral nor generally applicable because it invited the government ‘to decide which reasons for not complying with the policy are worthy of solicitude’ in its sole discretion.”
 
Judge Quattlebaum also highlights that the parents were not attempting to ban the books but merely sought the ability to opt out. He points out that the school’s guidelines previously allowed for reasonable accommodations for religious beliefs, and the sudden reversal without clear justification exacerbates the burden on religious parents. He finds it problematic that the board changed its policy to no longer permit notice and opt-out options, a move he describes as an unexplained “about-face” that failed to consider the substantial impact on religious families.
 
While the board aims to foster an inclusive environment, Judge Quattlebaum argues that this goal should not come at the expense of fundamental religious rights. As he says:
 
“The board’s refusal to grant the parents’ requests for religious opt-outs to instruction with the books the board required be used to promote diversity and inclusivity to the LGBTQ+ community forces the parents to make a choice – either adhere to their faith or receive a free public education for their children. They cannot do both.”
 
Judge Quattlebaum's dissent stands as a powerful defense of the fundamental right of parents to direct their children's education according to their beliefs.

​“Is the Liberty Bell all it’s cracked up to be?”
 
Hear Rabbi Dr. Meir Soloveichik, director of the Zahava and Moshael Straus Center for Torah and Western Thought at Yeshiva University and the rabbi at Congregation Shearith Israel in Manhattan, make wisecracks and wise observations in the keynote address at Becket’s recent Canterbury gala.

​There are tens of thousands of after-hours student groups in high schools across the country – from those celebrating film, music, chess, or drama to those of a more political or religious nature. At Noblesville High School in Indiana, for example, you could join the Young Democrats, the Young Republicans, the Fellowship for Christian Athletes, or the Gender and Sexuality Alliance. The one group students can no longer join is the Noblesville Students for Life (NSFL).
 
In August 2021 a freshman at Noblesville received initial approval to start a Students for Life chapter, which attracted 30 student sign-ups at the school’s fall activities fair. The following month, the student organizer prepared a poster advertising a club meeting, which featured a photograph of students outside the U.S. Supreme Court holding up life-affirming protest signs.
 
Then Noblesville’s principal “derecognized” the group, calling the poster “inappropriate” and too “political.” Noblesville, apparently, has a policy allowing administrators broad authority to issue prior restraints on student speech, barring “anything political in nature” as well as specific “political stance[s].” What constitutes “political” is entirely undefined and left up the whims of the individual administrator.
 
In December 2021, in coordination with Charitable Allies, the group’s student organizer brought suit against the school district, alleging First Amendment retaliation. The suit also claimed violations of the Equal Access Act, which prohibits discrimination against the political content of student groups meeting outside of class.
 
School administrators have every right to prevent students from engaging in disruptive conduct, but students have every right to express their First Amendment-protected viewpoints after hours.
 
Schools are limited public fora, which may issue viewpoint-neutral restrictions on groups. What they should not do is bar targeted political speech and then make ad hoc, biased determinations of what is unacceptable on a case-by-case basis. How the school found NSFL overly political when the Young Democrats and Young Republicans are permitted to meet and advertise their meetings is unfathomable. 
 
The administrators, of course, now claim they derecognized the club because of the student’s behavior, an argument contradicted by the evidence and the many contextual clues pointed out by the plaintiffs. It seems pretty clear that the principal simply doesn’t want the pro-life viewpoint represented at Noblesville High.
 
Ultimately, a District Court bought the school’s argument. Now the student is appealing to the Seventh Circuit, and this case is receiving legal backing from the Alliance Defending Freedom.
 
We hope that the court will recognize that rules must be neutral and that students don’t relinquish their First Amendment rights at the schoolhouse door – no matter how much some administrators might wish it were so.

​The doxing of donors is a danger to our democracy.
 
When donors give to a controversial cause, they count on anonymity to protect them from public backlash. This is a principle enshrined in law since 1958, when the U.S. Supreme Court protected donors to the NAACP from forcible disclosure by the State of Alabama.
 
Undeterred by this precedent, California tried to enforce a measure to capture the identities of donors and hold them in the office of that state’s attorney general, despite the fact that the California AG’s office has a history of leaks and data breaches. Surprisingly, the federal Ninth Circuit upheld that plan.
 
Civil liberties groups filed briefs before the U.S. Supreme Court arguing that this policy is dangerous, not just to the robust practice of democracy, but to human lives. Citizens have lost their jobs, had their businesses threatened, and even been targeted for physical violence, all because they donated to a political or cultural cause. In 2021, the Supreme Court agreed, reversing a Ninth Circuit opinion in Americans for Prosperity v. Bonta.
 
Still, the drive to expose donors – whether progressives going after gun rights organizations or conservatives going after protest organizations – remains a hot-button issue in state politics across the country. Politicians and groups are eager to know: Is George Soros or the Koch Foundation or name-your-favorite-nemesis giving money to a cause you oppose? Thanks to the work of the People United For Privacy (PUFP) foundation, that push to expose is now stopped cold in 20 states.
 
With help from PUFP, bipartisan coalitions in 20 states have adopted the Personal Privacy Protection Act (PPPA) to provide a shield for donor privacy by protecting their anonymity. This movement is spreading across the country, with Alabama, Colorado, and Nebraska having passed some version of this law just this year.
 
“Every American has the right to support causes they believe in without fear of harassment or abuse of their personal information,” says Heather Lauer, who heads People United for Privacy. “The PPPA is a commonsense measure embraced by lawmakers in both parties across the ideological spectrum.”
 
Supporters have ranged from state chapters of the ACLU, NAACP, and Planned Parenthood to pro-life groups, gun rights groups, and free market think tanks. Thanks to this campaign, 40 percent of states now protect donors. For the remaining 60 percent, the power of the internet can expose donors’ home addresses, places of work, family members, and other private information to harassers. The need to enact this law in the remaining 30 states is urgent.
 
Still, securing donor protection in 20 states is a remarkable record given that People United for Privacy was only founded in 2018. We look forward to supporting their efforts and seeing more wins for privacy in the next few years.

​Trademarks support brand integrity in the marketplace, including through certain restrictions on commercial speech. But what about the use of a living person’s name, specifically “Trump Too Small”? (If you don’t know what this means, we’ll let you Google it.) Merchant Steve Elster wanted to register that phrase as a trademark to sell T-shirts. The U.S. Patent and Trademark Office denied his application. A lower court, however, held that the government violated Elster’s First Amendment rights.
 
The Supreme Court today, in a unanimous decision, overturned that ruling and held that the phrase with the former president’s name cannot be trademarked. “Our courts have long recognized that trademarks containing names may be restricted,” Justice Clarence Thomas wrote for the majority. But such trademark restrictions, while “content-based” must be “viewpoint neutral.”
 
Justice Barrett wrote that the “government can reasonably determine that, on the whole, protecting marks that include another living person’s name without consent risks undermining the goals of trademark.” This is in keeping with a 1946 trademark law that bans the registration of any trademark that uses a living person’s name without their written consent.
 
Justice Sonia Sotomayor in a concurrence wrote that First Amendment considerations should be applied. She emphasized that First Amendment constraints can be respected without undermining traditional trademark rules.
 
Both sides have a point in law and in principle. Not only did the Court protect the name of a living person, it also refused to enforce a government monopoly on a phrase about a presidential candidate. To take a more generic example, suppose someone trademarked a phrase about Trump or Biden being too old, or too extreme, or too apt to take vacations. Imagine the complexities of a marketplace with thousands of products engaging in a national discussion about presidential candidates with select phrases off limits to anyone who didn’t want to pay or seek written permission to use them.
 
The Court was right to prevent commercial considerations from scissoring out pieces of the national debate. As a result of the Court’s decision, the public remains free to debate – in print, on T-shirts, on mugs, or on TV – the Goldilocks question of whether Trump is too small, too large, or just right. Now that is free speech.  

​The media is abuzz today about the unanimous ruling by the U.S. Supreme Court that rejected a challenge to the Food and Drug Administration’s regulation for the use of the abortion drug mifepristone. What’s overlooked, however, is that the Court’s opinion, authored by Justice Brett Kavanaugh, firmly nails down the conscience right of physicians and healers to abstain from participating in abortions and prescribing mifepristone.
 
This opinion firms up national policy on conscience rights. At a time when some in the federal bureaucracy and the states seem determined to chip away at conscience rights, the Court’s opinion will act as a concrete bollard to block further efforts at encroachment.
 
Justice Kavanaugh wrote that the Church Amendments, which prohibit the government from imposing requirements that violate the conscience rights of physicians and institutions, “allow doctors and other healthcare personnel to ‘refuse to perform or assist’ an abortion without punishment or discrimination from their employers.” The Court’s opinion also repeatedly quotes the Biden Administration in affirming that “federal conscience protections encompass ‘the doctor’s beliefs rather than particular procedures’ … As the Government points out, that strong protection for conscience remains true even in a so-called healthcare desert, where other doctors are not readily available.”
 
The opinion notes as a matter of law and fact that federal conscience laws have protected pro-life doctors ever since the FDA approved mifepristone in 2000. The pro-life plaintiffs in this case argued that the Emergency Medical Treatment and Labor Act (EMTALA) might be interpreted to require individual emergency room doctors to participate in emergency abortions. But the administration rejected that reading of EMTALA, and the Court declared today “we agree with the Government’s view of EMTALA on that point.”
 
These declarations are not as sensational as upholding a drug that is used for the majority of pregnancy terminations. From now on, however, any effort to restrict or violate the conscience rights of healers will go against the declared intent of the Biden Administration and the unanimous opinion of all nine Justices of the U.S. Supreme Court.

​Who qualifies as a journalist? Do you have to work for a mainstream media outlet? If you don’t have the imprimatur of an award-winning newspaper like The New York Times or Washington Post, does that negate your right to gather and convey information?
 
That seems to be the case in certain parts of Texas, where police have twice recently arrested private citizens for committing the crime of journalism. In 2021, the Fort Bend County Sheriff’s Office arrested and strip-searched Justin Pulliam – who posts on the YouTube channel Corruption Report – for filming police during a mental health call. Despite following police instructions to stand away from the interaction, Pulliam was charged with “Interference with Public Duties,” a Class B misdemeanor under Texas state law.
 
It wasn’t the first time Pulliam had been legally harassed – earlier that year he was ejected from a press conference because authorities said he did not qualify as a journalist.
 
A similar situation happened back in 2017, when Laredo police arrested citizen journalist Priscilla Villareal under a statute prohibiting the solicitation of nonpublic information where there is “intent to obtain a benefit.” AKA journalism. The Fifth Circuit initially sided with Villareal, with Judge Ho writing:
 
“If the First Amendment means anything, it surely means a citizen journalist has the right to ask a public official a question, without fear of being imprisoned. Yet that is exactly what happened here: Priscilla Villarreal was put in jail for asking a police officer a question. If that is not an obvious violation of the Constitution, it’s hard to imagine what would be.”
 
Unfortunately, the full court backtracked during an en banc appeal, finding that city officials had qualified immunity. As we wrote at the time, that ruling set a terrible precedent for freedom of the press – sending a message that reporters should be wary of arrest and reprisal for daring to ask questions of government officials.


Now, Pulliam’s case is up before the Fifth Circuit too, following a Texas district court’s rejection of the defendants’ qualified immunity argument. We’ll see whether the judges get it right this time and acknowledge that Corruption Report constitutes a “legitimate” media outlet. In Villareal’s case, Judge Edith Jones suggested that her Lagordiloca page was not.
 
We respectfully disagree. Courts should not be in the business of determining who is and who is not a “legitimate” reporter according to platform or reporting style. The changing technological landscape has enfranchised a new class of citizen journalists no less deserving of respect and the protections of the First Amendment than their more well-heeled counterparts.
 
Offering a step in the right direction, the Protect Reporters from Exploitive State Spying (PRESS) Act, introduced by Sen. Ron Wyden and Rep. Jamie Raskin, brings all sorts of journalists into the fold and provides a shield for reporters’ notes and sources from prying prosecutors. The PRESS Act defines a covered journalist as someone who “gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns news events or other matters of public interest for dissemination to the public.” That would certainly include Pulliam and Villareal.
 
The House passed the PRESS Act by unanimous voice vote earlier this year. The Senate should follow up and send it to the president’s desk for signature.
 
As for the Fifth Circuit, the Pulliam case is a great chance to revise its stance and catch up with the evolution of the fourth estate.

​Pew Research Center’s 14th annual study analyzing global restrictions on religion drew some disturbing conclusions, finding that state-sponsored harassment of religious groups reached an all-time high in 2021.
 
According to the study, governments across 183 countries (out of a total of 198) engaged in some degree of hostile acts or restrictive policies toward religious groups. The report splits its analysis into two categories – government restrictions on religion, and social hostilities toward religious minorities. While social hostility ticked down somewhat, the Government Restrictions Index (GRI) rose to 3.0 on a 10-point scale. While low on the overall scale, it reflects a jump up from 2.8 in 2020 – with heightened persecution in given regions raising the average global score.
 
As Pew documents, government harassment was reported in each of the 20 countries in the Middle East-North Africa region, as well as in “43 of 45 countries in Europe (96 percent), 33 of 35 countries in the Americas (94 percent), 44 of 48 countries in sub-Saharan Africa (92 percent), and 43 of 50 countries in the Asia-Pacific region (86 percent).” The United States was rated as respecting religious practices overall but had instances in which religious freedom was not respected in practice.
 
In the Netherlands, Party for Freedom leader Geert Wilders (a perennial favorite for such reports) called for countrywide “de-Islamization.” There have been proposals for “a series of measures including closing all mosques and Islamic schools, banning the Quran, and barring all asylum seekers and immigrants from Muslim-majority countries.”
 
In Nicaragua, the president called Catholic clergy members “terrorists in cassocks” for supporting the country’s pro-democracy movement. In the Maldives, non-Muslims are outright prohibited from building places of worship or practicing their faith publicly.
 
Two of the biggest offenders are Pakistan and Turkmenistan, the latter of which openly sanctions government harassment of some religious people. In one instance, Turkmenistan police detained groups of Muslim men and forced them to shave their beards and drink alcohol to prove that they weren’t “extremists.”
 
Despite the fact that religious intolerance seems to be getting worse, it’s not all bad news – at least, not entirely so. Per the report, Sudan saw a large decrease in its GRI score, due largely to government reforms that decriminalized apostasy and “indecent dress.”
 
Still, Pew’s report is a wakeup call – and a reminder that respecting religious freedom is an ideal to which not all aspire. Protecting the ability of people to worship freely requires ongoing vigilance and, most of all, compassion.
 
In the United States, 94 percent of Americans believe religious freedom is a fundamental human right. Even here, the study found that the United States had “moderate” restrictions on religious freedom. We need to guard our American exceptionalism, which already is sometimes the result of a bright spot looking even brighter in contrast to surrounding darkness.

​The double standard in academia is reaching sickening levels.
 
At Rutgers, as at many universities, students who wear some outward sign of adhering to the Jewish faith, such as a kippah or a Star of David necklace, are often stopped and interrogated by self-appointed ideological vigilantes. At the same time, Jewish students are denied the right to hold a peaceful event on campus – including the forced cancellation of a peaceful, pro-Israel barbecue on the Rutgers University campus – out of fear of provoking violence from pro-Hamas protestors occupying the campus.
 
When rhetoric gets violent and confrontation becomes intimidating, viewpoint discrimination edges into persecution. Yet many elite universities flirt with such danger. We would be justly outraged if a young woman on campus was harassed for wearing a hijab, or a young Sikh man was stopped and interrogated about his turban. Yet administrators at Rutgers and other institutions are often missing in action when the targets are Jewish students. 
 
A recently filed lawsuit by student Rebecca Schafer against Rutgers University shines a light on how escalating antisemitism on America’s university campuses shuts down speech and free inquiry. Schafer, an Orthodox Jewish student, sued the university after enduring months of harassment, intimidation, and discrimination, which she claims the administration failed to address.
 
Schaffer recounts that eight days after the October 7th Hamas attacks on Israel, a student meeting at Demarest Hall took a dark turn when a student expressed joy over the high death toll in Israel, a sentiment that was met with approval from others. The dust had barely settled from this attack in which elderly Israelis were murdered and babies killed in their cribs. This disturbing incident was compounded when a mezuzah, a Jewish prayer scroll affixed to the doorposts of Jewish homes for protection and blessing, was torn from a student's door and discarded in a bathroom. Schafer left the meeting scared and shaking, feeling deeply threatened by the aggression toward her faith.
 
Rebecca Schafer next became a personal target when posters with her photograph and pro-Palestinian slogans appeared outside her dorm room. This act of intimidation was terrifying for Schafer, leading to a police investigation and charges against two students. The chilling message was clear: “You aren’t safe anywhere at Rutgers.”
 
At a recent House hearing in which Rutgers University President Jonathan Holloway and the presidents of other universities were grilled by Rep. Elise Stefanik (R-NY) and other Members, it came to light just how frightening campus occupations are for Jewish students. In a particularly egregious incident, a student directed the remark “Hitler would have loved you” at Schafer during an encampment. Schafer recounts that Jewish students were forced to flee out the back door of university buildings to escape the hostile environment. The portrait painted by Schafer’s lawsuit is of a spineless university administration leaving Jewish students to fend for themselves in the face of violent rhetoric and threats.
 
The slow and methodical approach by Rutgers and other universities would never be tolerated if another ethnic or religious group were persecuted in such ways. When the fall semester begins in a few months, parents, students, and donors must demand college administrators react with alacrity to the persecution of Jewish students or be ready to give up their jobs.
 
Protect The 1st will monitor this story as it develops.

​Employment in America is “at will.” This means employers can fire an employee without warning, provided that the action is not based on race, gender, or a few other protected categories. A case in Tennessee tests the premise that Blue Cross Blue Shield of Tennessee was within its rights to fire employee Heather Smith in retaliation for her sending emails to state legislators about her religious objections to her employer’s Covid-19 vaccine mandates.
 
In short, what happens when the unstoppable force of a woman exercising her First Amendment right to petition the government slams headfirst into the immovable force of America’s at-will doctrine of employment?
 
A district court in Tennessee sided with the immovable force, granting a motion to dismiss out of recognition of the doctrine of at-will employment. The Tennessee Court of Appeals reversed that ruling, upholding Smith’s right to petition. The court found that “firing an at-will employee merely for writing to the Tennessee General Assembly is a bridge too far.”
 
On Thursday, this case was heard by the Supreme Court of Tennessee. (Oral arguments get interesting with the court’s grilling of Smith’s attorney, Steve Duggins, at the 35:30 mark. Credit to the Tennessee Supreme Court, by the way, for holding this case in front of an audience of high school seniors in the Boys State program.)
 
“A democracy cannot properly function if its citizens cannot freely communicate with their representatives,” Duggins told the court. Justice Jeff Bivins asked if the First Amendment protected an employee who bad-mouthed her employer to random people in a town square. Duggins agreed that person could be fired.
 
Duggins based his demonstration on the Tennessee Constitution. He reinforced arguments made by an American Civil Liberties Union amicus brief based on article I, section 23 of the Tennessee Constitution that grants a broad, positive right to petition “their representatives.” 
 
But are the First Amendment implications in this case that clear? Courts have found in the language of the First Amendment an implied right to freedom of association. Blue Cross Blue Shield has its own associational and speech rights. Employers thus have a clear right to disassociate themselves from employees who contradict their policies. If the Tennessee Supreme Court sides with Blue Cross, would that mean that the Tennessee Constitution conflicts with the First Amendment?
 
Such cases present a spaghetti-like tangle of conflicting issues. Another example:  Protect The 1st Senior Legal Advisor Eugene Volokh recently analyzed the case of a woman who took a selfie in front of the U.S. Capitol before the riots began on Jan. 6, 2021. She posted it on her Facebook account. Her employer in California falsely assumed she was one of the rioters and fired her. Was that an illicit punishment of protected political speech, or a company upholding its associational rights?
 
We look forward to seeing how in this Tennessee case the state Supreme Court untangles such strands.

​The Lone Star State is back on track to enact comprehensive school choice legislation. Gov. Greg Abbott has secured enough votes in the Texas House to advance his ambitious school-choice agenda. With the likely adoption of school choice in the nation’s second-most populous state, the national sweep of school choice will gain even more momentum.
 
The renewed school choice agenda in Texas follows primary runoff elections reflecting strong support for educational vouchers among Texans. Gov. Abbott’s campaign to replace anti-voucher Republicans with pro-voucher candidates yielded impressive results. Eleven out of the 15 Republican challengers he backed defeated House incumbents in their primaries.
 
This victory is seen as a monumental shift in favor of school choice. Tommy Schultz, CEO of the American Federation for Children Victory Fund, described these GOP elections as the "single biggest movement in favor of school choice in modern history." The success of Abbott’s endorsed candidates reflects the growing demand for educational freedom and parental empowerment in Texas.
 
The journey has not been without challenges. Last year, many House Republicans voted against expanding school choice, stopping Abbott’s proposal cold. Their opposition was largely due to concerns from rural districts about potential cuts to public education funding – despite assurances that Texas would keep these districts whole.
 
Gov. Abbott’s renewed momentum in Texas suggests a strong potential for change. Pro-voucher Republicans now hold a majority in the House, with 77 members in the 150-member chamber. This shift sets the stage for the potential passage of significant school choice legislation in the near future.
 
Protect The 1st sees school choice movements like the one in Texas as a fundamental expression of First Amendment rights. By empowering parents to choose the best educational pathways for their children, school choice promotes values and heritage across generations. The broad support for school choice among Americans, including significant backing from minority communities and a substantial portion of Democrats, reflects its widespread appeal.
 
Gov. Abbott’s primary victories mark a crucial turning point for school choice in Texas and the nation. In March, Alabama became the 11th state to embrace universal school choice. Tennessee is edging ever closer to adopting statewide school choice. If, as seems likely, a school choice success in Texas would make a dozen states – about one-quarter of all states – now with comprehensive or universal school choice.

“At the heart of the First Amendment’s Free Speech Clause is the recognition that viewpoint discrimination is uniquely harmful to a free and democratic society.”
 
This declaration comes from a unanimous opinion, authored by Justice Sonia Sotomayor, that clears the way for the National Rifle Association to pursue a First Amendment claim against a New York insurance regulator who had twisted the arms of insurance companies and banks to blacklist the Second Amendment advocacy group. The NRA was represented by Protect The 1st Senior Legal Advisor Eugene Volokh, as well as the American Civil Liberties Union.
 
Maria T. Vullo, superintendent of New York’s Department of Financial Services, had earlier found that NRA’s affinity insurance benefits for members were constructed and sold in a way that violated New York law. Vullo then pushed beyond her regulatory purview into an attempt to punish speech.
 
Vullo met with Lloyd’s of London executives in 2018 to bring to their attention technical infractions that plagued the affinity insurance market in New York, unrelated to NRA business. Vullo told the executives that she would be “less interested” in pursuing these infractions “so long as Lloyd’s ceased providing insurance to gun groups.” She added that she would “focus” her enforcement actions “solely” on the syndicates with ties to the NRA, “and ignore other syndicates writing similar policies.” Vullo followed up with guidance letters to insurance companies and financial services firms extolling the severance of ties with the NRA as a way for companies to fulfill their “corporate social responsibility.”
 
“As alleged, Vullo’s communications with Lloyd’s can be reasonably understood as a threat or as an inducement,” the Court found. “Either of those can be coercive.” The Court quoted a Seventh Circuit opinion regarding a sheriff who interfered with a website by coercing its payment-services providers: “The analogy is to killing a person by cutting off his oxygen rather than by shooting him.”
 
The core of the Court’s opinion rested on Bantam Books v. Sullivan, which involved a Rhode Island state commission that sought to censor books by prohibiting distributors from moving targeted books to stores. Compliance was assured by police offers dispatched to the distribution companies to check their records. The Supreme Court held that the commission’s actions amounted to censorship. In this case, the Court found:
 
“Ultimately, Bantam Books stands for the principle that a government official cannot do indirectly what she is barred from doing directly: A government official cannot coerce a private party to punish or suppress disfavored speech on her behalf.”
 
The Supreme Court’s opinion vacates the Second Circuit’s reversal of a lower court opinion, and remands it for adjudication under this ruling. When that case is heard again, the judges of the Second Circuit will have these words of this unanimous opinion ringing in their ears:
 
“[T]he critical takeaway is that the First Amendment prohibits government officials from wielding their power selectively to punish or suppress speech, directly or (as alleged here) through private intermediaries.”