​Diaba Konaté, the defensive player of the year for the Big West conference as a point guard for the University of California, Irvine, was born in Paris. She won two silver medals and one gold medal for her home country’s under-18 national team. But she was forbidden from trying out for the Olympic team in her native France because she wears a hijab – a sign of piety and modesty – while she plays.
 
“I can’t fully express my faith and pursue my athletic aspiration,” Konaté said.
 
On the surface, the decision by the French Federation of Basketball to forbid its Muslim female athletes from wearing the hijab in their competition and official ceremonies is a strictly French affair. It is based on the somewhat strained theory that French athletes are public servants, and therefore are subject to the nation’s spirit of laïcité, or strict secularism, that shuns any visible or vocal expression of religious belief in the public sphere. This doctrine is taken to an extreme in France, where any politician who so much as evokes a religious perspective on a public issue is held to have committed a serious faux pas.
 
This French doctrine, first enshrined in law in the early 20th century, seems to be a distant echo of the radical and violent anticlericalism of the French Revolution, as well as an expression of the rationalism of the Third Republic. The result today is official hostility in France to students who wear crucifixes, kippahs, turbans, and hijabs.
 
Before we congratulate ourselves for being broader minded, keep in mind that in many official quarters of the United States religion remains a suspect characteristic best quarantined from larger society. From Colorado to Maine, religious schools have had to fight in court to defend their right to have the same access to public funds as other private schools. In Arizona, an elementary school district attempted to ban student-teachers from Arizona Christian University based solely on religious affiliation. In Minnesota, the state legislature blocked fully accredited religious schools from offering college credit courses to high schoolers. In Mississippi, an elementary school student was disciplined for wearing a mask during the Covid era that said “Jesus Loves Me.”
 
The good news is that administrators backpedaled in these cases. There are also affirmative wins as well. In Pennsylvania, Gov. Josh Shapiro last year signed a repeal of a Blaine Amendment-era law forbidding public school teachers from wearing “religious garb,” such as a hijab or kippah. And the U.S. Supreme Court in 2022 famously upheld the right of a football coach to pray on his own time after a game.
 
While the American experience is a far cry from attitudes in France, many in U.S. officialdom still seem to believe, as the French do, in a “wall of separation between church and state” – a wall not to be found in the U.S. Constitution but in an 1802 letter President Thomas Jefferson to a group of Connecticut Baptists. Our Constitution mandates no establishment of religion or religious tests for office. This wise policy has kept America free of the religious wars and turmoil that once engulfed Europe. But it is not a “wall” that treats any semblance of religious expression in what one wears, or prayers for over lunch, as an infection to be isolated.
 
American public schools and other secular institutions are enhanced by this pluralism, including the right to wear or not to wear items that are central to one’s beliefs. Let’s hope that in time the French come to recognize the wisdom of American pluralism, rather than Americans embracing the anti-liberal, strict secularism of Paris elites.

​For the second time, Pennsylvania Gov. Josh Shapiro had a chance to stand up for school vouchers to help children from low-income families escape failing public schools to find a quality education in a private school. For the second time, Gov. Shapiro chose what seems to be – superficially at least – the politically expedient path.
 
From The Wall Street Journal:
 
“The Governor has national ambitions, and the teachers unions that oppose vouchers could stand in the way of his chances for the Democratic presidential nomination in 2028. But he’d also have allies, such as the Black Pastors United for Education, who last month wrote him a letter calling for vouchers. On Friday they wrote him again, saying they never got a response to the first letter, and inviting him to discuss vouchers at a town hall. 
 
“For our lawmakers to disregard this issue of freedom,” says Joshua Robertson, a pastor in Harrisburg, “is unacceptable.” Citing the “dire” education situation in public schools, he adds: “We need a courageous Governor.”

​Sunday is National Parents’ Day, a day to recognize the sacrifices made by the 63 million parents in the United States. Signed into law by President Clinton in 1994, National Parents’ Day could be treated lightly – like so many other legislative honorifics, such as National Wine and Cheese Day (July 25) or National Bagelfest Day (July 26).
 
But Sunday’s observance calls for deeper reflection.
 
The courts, the media, and the culture focus on the responsibilities of parents, which are intense and last for years. In no other relationship is a person so bound by law and custom to see to the nutrition, clothing, education, and care of another person. Fortunately, for most of us, these things and so much more are given freely, even enthusiastically.
 
Many educators and politicians, however, seem to have a growing hostility to the flip side of responsibility – the rights of parents. Parents have many rights, including the right to see that the values they hold dear are the ones their children grow up with. Indeed, the First Amendment guarantees the right of every American – including parents – to expressive activity. And that includes not only what we say, write, post, and support, but also our efforts to perpetuate our values across generations.
 
Thus, for example, public-school parents have the right to support their children in joining the after-school club of their choice, whether it is about science, a film club, art club, or faith. And yet, regarding the latter, parents have twice had to go to federal court to obtain reversals of educators’ efforts, from Washington, D.C., to San Jose, California, to block the students of the Fellowship of Christian Athletes from holding after-school meetings. In the latter case, Judge Kenneth K. Lee of the Ninth Circuit found evidence that educators were emitting a “stench of animus” toward religious belief.
 
This animus is also seen in Montgomery County, Maryland, where Muslim and Christian parents tried and failed in court to be allowed to keep their preschool and elementary students from being taught unnecessarily explicit lessons about sexuality – the mere exposure to which violates their families’ religious beliefs.
 
Of course, parents with purely secular values also have the right to perpetuate their values across generations. Yet they generally face no such discrimination. The stench of animus that Judge Lee found leads instead to the apparent determination of some to run roughshod over parental rights mostly when it comes to religion. There seems a desire by some in the educational establishment to stamp everyone with uniform values, instead of embracing the pluralistic nature of American society.
 
With so many leaders of public education determined to shape children with a cookie cutter of uniformity, parents are increasingly exercising their rights by leaving the system altogether. This rebellion against the cookie cutter has led to a movement in a dozen states to embrace universal school choice. To be sure, private schools in these voucher systems must still adhere to state standards in the teaching of science, math, history, English, and social studies. But school choice leaves room for pluralism, whether the school imparts religious values or not.
 
The rights of parents, and how they intersect with their First Amendment rights, is something to reflect on – and celebrate – this Sunday.

​California, known for its progressive values and innovation, is increasingly becoming a battleground over the regulation of speech. The state's regulatory, political, and educational bodies are systematically encroaching on the fundamental right to free expression, attempting to manage and control speech in ways that undermine the First Amendment in the schools and among businesses.
 
When California sets a precedent, the implications for free speech rights across the country are profound, warranting close scrutiny and robust debate. Yet in California, recent actions reflect a shift towards control and censorship, challenging this essential liberty.
 
Consider the legal battle involving X Corp., formerly known as Twitter. The company has been fighting against surveillance and gag orders that infringe on X’s First Amendment rights while also threatening the Fourth and Sixth Amendment rights of its users. When the government demands access to personal data stored by companies like X Corp. and then issues Non-Disclosure Orders (NDOs) to keep this secret, it coerces companies into acting as government spies, unable to speak to their users about the breaches of their privacy.
 
This case highlights a broader pattern in California's legislative and judicial landscape. One recent law, California Bill AB 587, mandates that social media companies disclose their content moderation practices. Legal scholar Eugene Volokh has argued that this law pressures companies to engage in viewpoint discrimination, reveal their internal editorial processes, and do the government's bidding in managing speech. How would that be different from requiring newspapers to explain their editorial decisions to the government?
 
These laws and regulations are often claimed to be justified as necessary for combating hate speech, misinformation, and harassment; however, they impose significant burdens on companies and threaten to stifle free expression. A court recently ruled against X Corp. in its attempt to block the law requiring it to disclose to the government the internal deliberations of its content moderation policies. While transparency in moderation practices might seem beneficial, the forced disclosure could lead to state-enforced censorship and coercion of private editorial processes, undermining the very principles of free speech the First Amendment is meant to protect.
 
The state's approach to managing speech extends beyond digital platforms. In a recent disturbing case, an elementary school disciplined a first grader for drawing a benign picture with the phrase “Black Lives Matter.” Being young and probably unaware of the larger sensitivities, this elementary school child added: “any life.” The school promptly disciplined the child without telling her parents. This overreaction reflects a broader problem with educational institutions, driven by a hypersensitivity to the perceived (or mis-perceived) demands of political correctness, that end up punishing even innocent expressions of empathy and solidarity. A federal court's support for the school's actions further highlights the precarious state of free speech rights in educational settings, from elementary school up to graduate school, law school, and medical school.
 
California's aggressive stance on speech regulation also manifests in its legal battles over the Second Amendment. A controversial state law tried to impose attorney's fees on plaintiffs challenging gun restrictions even if they win their case, but lose any small portion of their claims. This tactic aims to deter legal challenges and silence dissent, directly contravening First Amendment rights. The law’s similarity to a Texas statute targeting abortion challengers underscores a worrying trend of using financial penalties to stifle constitutional challenges.
 
These cases collectively illustrate a dangerous trajectory in California's approach to managing speech. The state's efforts to regulate and control various forms of expression, whether online, in schools, or through legal deterrents, represent a direct assault on the First Amendment. The complexities and nuances of speech, inherently messy as they are, cannot and should not be sanitized by governmental oversight.
 
Fortunately, the U.S. Supreme Court remains a bulwark against regulations violating the First Amendment. The Court’s decision in AFP v. Bonta, which struck down California's requirement for non-profit organizations to disclose their donors, was a significant victory for free speech. The Court recognized that such disclosure requirements pose a substantial burden on First Amendment rights, particularly by exposing donors to potential harassment and retaliation. This case reinforces the principle that anonymity in association is crucial for protecting free expression and dissent. In the recent NetChoice opinion, a majority of the Court gave a ringing endorsement of editorial freedom, even while sending the case back for a more detailed review of the laws.
 
We remain optimistic the Supreme Court will likewise rein in California’s antagonism toward the First Amendment if, and when, it has the opportunity.

The recent session of the U.S. Supreme Court will likely be remembered for two major rulings implicating fundamental separation of powers doctrine: Trump v. United States, establishing presumptive immunity from prosecution for official presidential acts; and Loper Bright Enterprises v. Raimondo, dispensing with the long-established “Chevron Two Step” granting deference to a federal agency’s interpretation of statutes. In both instances, the Court reaffirmed our constitutional system of checks and balances, including protection against encroachment on the powers and privileges of one branch of government by another.
 
Against the backdrop of those headline-dominating developments, the Supreme Court also took on several important First Amendment cases, with results that were constitutionally sound. Below are the highlights – and summaries – of the Court’s First Amendment jurisprudence released in recent weeks.
 
Food and Drug Administration v. Alliance for Hippocratic Medicine
 
In a unanimous ruling, the Supreme Court rejected a challenge to the Food and Drug Administration’s regulation of the abortion drug mifepristone. Little noticed by the media, the Court’s opinion also firmly nailed down the conscience right of physicians to abstain from participating in abortions and prescribing the drug.
 
Writing for the Court, Justice Kavanaugh said 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.”
 
From now on, any effort to restrict or violate the conscience rights of healers will go against the unanimous opinion of all nine justices of the U.S. Supreme Court.
 
Vidal v. Elster
 
The Supreme Court, in another unanimous decision, overturned a lower court ruling that found that the U.S. Patent and Trademark Office’s denial of an application to trademark a phrase including the name “Trump” violated the filer’s First Amendment rights.
 
Writing for the Court, Justice Thomas wrote that “[o]ur courts have long recognized that trademarks containing names may be restricted.” But such trademark restrictions, while “content-based” must be “viewpoint neutral.” This opinion prevents commercial considerations to scissor out pieces of the national debate. While the decision rejected a novel First Amendment claim to a speech-restricting trademark, it affirms sound First Amendment principles and protects the speech of all others who would discuss and debate the virtues and vices of prominent public figures.
 
The Court was right to refuse the endorsement of a government-granted monopoly on a phrase about a presidential candidate.
 
NRA v. Vullo
 
NRA v. Vullo – yet another unanimous opinion – cleared 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 group.
 
Maria Vullo, former superintendent of the New York State Department of Financial Services, 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.”
 
The Court found for the NRA, writing that, “[a]s alleged, Vullo’s communications with Lloyd’s can be reasonably understood as a threat or as an inducement. Either of those can be coercive.”
 
The Supreme Court’s opinion vacates the Second Circuit’s ruling to the contrary and remands the case to allow the lawsuit to continue.
 
As the Court wrote, “the 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.” And we wholeheartedly agree – censorship by proxy is still government censorship.
 
Moody v. NetChoice

In one of two cases involving the nexus of government and social media, the Court seemed to punt on making a final decision on the constitutionality of laws from Florida and Texas restricting the ability of social media companies to regulate access to, and content on, their platforms.
 
Many commentators believed the Court would resolve a split between the Fifth Circuit (upholding a Texas law restricting various forms of content moderation and imposing other obligations on social media platforms) and the Eleventh Circuit (which upheld the injunction against a Florida law regulating content and other activities by social media platforms and by other large internet services and websites).
 
The Court’s ruling was expected to resolve the hot-button issue of whether Facebook and other major social media platforms can depost and deplatform. Instead, the Court found fault with the scope and precision of both the Fifth and the Eleventh Circuit opinions, vacating both of them and telling the lower courts to drill down on the varied details of both laws and be more precise as to the First Amendment issues posed by such different provisions. The opinion did, however, offer constructive guidance with ringing calls for stronger enforcement of First Amendment principles as they relate to the core activities of content moderation.
 
The opinion, written by Justice Elena Kagan, declared that: “On the spectrum of dangers to free expression, there are few greater than allowing the government to change the speech of private actors in order to achieve its own conception of speech nirvana.”

Murthy v. Missouri
 
In what looked to be a major case regarding the limits of government “jawboning” to get private actors to restrict speech, the Court instead decided that Missouri, Louisiana, and five individuals whose views were targeted by the government for expressing misinformation could not demonstrate a sufficient connection between the government’s action and their ultimate deplatforming by private actors.
 
Accordingly, the Court’s reasoning in this 6-3 decision is that the two states and five individuals lacked Article III standing to bring this suit. A case that could have defined the limits of government involvement in speech for the central media of our time was thus deflected on procedural grounds.
 
Justice Samuel Alito, in a fiery dissent signed by Justices Clarence Thomas and Neil Gorsuch, criticized the punt, calling Murthy v. Missouri “one of the most important free speech cases to reach this Court in years.” Fortunately, NRA v. Vullo, discussed above, sets a solid baseline against government efforts to pressure private actors to do the government’s dirty work in suppressing speech the government does not like. Later cases will, we hope, expand upon that base.
 
Secret communications from the government to the platforms to take down one post or another is inherently suspect under 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.
 
Gonzalez v. Trevino
 
Protect The 1st has reported on the case of Sylvia Gonzalez, a former Castle Hills, Texas, council member who was arrested for allegedly tampering with government records back in 2019. In fact, she merely misplaced them, and was subsequently arrested, handcuffed, and detained in what was likely a retaliatory arrest for criticizing the city manager. In turn, Gonzalez brought suit.
 
Gonzalez’s complaint noted that she was the only person charged in the past 10 years under the state’s government records law for temporarily misplacing government documents. In 2019’s Nieves v. Bartlett, the Supreme Court found that a plaintiff can generally bring a federal civil rights claim alleging retaliation if they can show that police did not have probable cause. The Court also allowed suit by plaintiffs claiming retaliatory arrests if they could show that others who engaged in the same supposedly illegal conduct, but who did not engage in protected but disfavored speech, were not arrested.
 
The U.S. Court of Appeals for the Fifth Circuit threw out Gonzalez’s case, finding that she would have had to offer examples of those who had mishandled a government petition in the same way that she had but – unlike her – were not arrested. The Supreme Court, by contrast, found that, “[a]lthough the Nieves exception is slim, the demand for virtually identical and identifiable comparators goes too far.” The Court thus made it a bit easier for the victims of First Amendment retaliation to sue government officials who would punish people for disfavored speech.
 
The controversy will now go back to the Fifth Circuit for reconsideration.
 
***

While the Court avoided some potentially landmark decisions on procedural grounds, and offered a mixed bag of decisions concerning plaintiffs’ ability to obtain redress against potential First Amendment violations, the majority consistently showed a strong desire to protect First Amendment principles – shielding people and private organizations from government-compelled speech.

​When a federal judge recently ruled in favor of the Fellowship of Christian Athletes’ (FCA) right to register as an official student group at the Washington, D.C.-based Jackson-Reed High School, she smacked down a copycat challenge by educators that had already recently been rejected – twice – by the federal Ninth Circuit Court of Appeals.
 
This is the second major challenge to the FCA, an international ministry dedicated to engaging student-athletes in their Christian faith. The FCA had been removed before as an official student group by the San Jose school district, only to be reinstated in federal court. The school’s objected to the FCA's requirement for student leaders to adhere to its Statement of Faith, which among many other tenets includes traditional Christian views on marriage and sexual conduct. Not willing to accept this precedent, the District of Columbia Public Schools sought to exclude FCA at its Jackson-Reed High School.
 
In her ruling, Judge Dabney L. Friedrich granted a preliminary injunction in favor of the FCA, emphasizing that the District's application of its Anti-Discrimination Policy was likely in violation of both the Religious Freedom Restoration Act (RFRA) and the Free Exercise Clause of the First Amendment. The court found that the school district was forcing the FCA to choose between maintaining its religious principles or jettison them to win official recognition, a choice not imposed on secular groups at the school.
 
Judge Friedrich's opinion underscored the unequal treatment of the FCA compared to other student groups that also impose ideological requirements on their members. The court noted, “It makes equal sense that a religious group be allowed to require that its leaders agree with the group’s most fundamental beliefs.” This statement aligns with previous Ninth Circuit rulings which highlighted the discriminatory “double standard” applied against the FCA in similar cases.
 
The court's conclusion was clear: “Antidiscrimination laws, like all other laws, must be applied evenhandedly and not in violation of the Constitution.” This reaffirms the principle that religious organizations should not be penalized for their beliefs, especially when similar secular groups are allowed to operate under their own sets of standards.
 
This ruling not only reinstates the FCA at Jackson-Reed High School but should also reaffirm the Ninth Circuit’s precedent. The court's decision reflects a broader commitment to upholding First Amendment rights and ensuring that religious groups are treated fairly and without bias. This is a significant step forward in protecting religious freedom in educational settings, reminding institutions of the importance of mutual respect and tolerance for diverse beliefs.
 
This should be the last word for some school administrators who want to lock the school door to keep out religious student organizations, but somehow, we doubt it will be.

​It is a rare day that a federal court can get the First Amendment so wrong. But a panel of the First Circuit Court of Appeals managed to do it.
 
In the 2021 local school board election in Bourne, Massachusetts, candidate Kari MacRae based her campaign on a promise to “fight woke values.” She posted on TikTok that “the reason why I’m taking on this responsibility is to ensure that students, at least in our town, are not being taught critical race theory.” She shared a meme that showed a man wearing a sport’s bra with the caption, “Equality doesn’t always mean equity.”
 
You might deplore or “like” MacRae’s stance. But her comments clearly fall under the category of political speech, which courts have held is the most protected form of speech, subject to strict scrutiny when challenged by government restrictions. Clearly, many residents agreed with MacRae – she won her seat on the school board. That mandate, endorsed by the voters, did not stop the school district from firing her after she was later hired as a schoolteacher and these posts came to light.
 
The First Circuit, in ruling against MacRae, cited precedent in which government employees were sanctioned for statements they made in an official capacity. Judge Ojetta Rogeriee Thompson wrote that “public employees’ First Amendment rights ‘are not absolute,’ and so public employees ‘by necessity must accept certain limitations on [their] freedom.’” The case she cited, Garcetti v. Ceballos (2006) concerned statements by an employee of the Los Angeles district attorney’s office about the veracity of facts in a warrant affidavit. The Supreme Court held that the DA’s office could discipline the employee for publicly contradicting his superiors.
 
But MacRae did not make these statements as a teacher in a classroom. She made them as a private citizen running for office before she was even hired.
 
The Wall Street Journal points out the obvious danger of this ruling:
​
“The First Circuit’s decision delineates no statute of limitation or limiting principle to employee speech that government employers can punish. A teacher could be fired for hanging a ‘Make America Great Again’ flag at home. Political activity during college years could become grounds for dismissal.”
 
Love or hate what McRae says, comments from her political campaign should not be cause for her dismissal as a teacher. The U.S. Supreme Court might find review of this case to be too tempting to ignore.

Following the Oct. 7th atrocities committed against Israeli citizens, retaliatory attacks against Hamas with many innocents caught in the crossfire led to protests on campuses nationwide that shut down students’ freedom of movement and learning. Whatever one’s view of that conflict, it is undeniable that many anti-Israel protests turned into antisemitic persecution of students and faculty. Nowhere were these attacks as dark or troubling as those that occurred at the University of California, Los Angeles.  
​
From April 25, 2024, to May 2, 2024, UCLA permitted a group of protestors to set up barricades in the heart of campus, creating what was widely termed a “Jew Exclusion Zone.” Activists locked arms, racially profiled students and faculty presumed to be Jewish, and refused to allow them access to campus or educational buildings unless someone vouched for their belief in the anti-Israel cause.

The university, for its part, facilitated this occupation by failing to break up the blockade for a full week. Administrators even went so far as to hire private security to direct Jewish students away from the encampment, where calls for “death to Israel” and “death to Jews” were commonplace. 

As Chancellor Gene Block testified before Congress, events at UCLA reflected “the disturbing rise of antisemitism across our country since October 7th,” which placed Jewish students in “a state of anxiety and fear.”

Now, the Becket Fund, representing three Jewish students from UCLA, is bringing suit against the university. As the plaintiff’s memorandum correctly alleges, the university’s acquiescence to the creation of a disruptive, discriminatory, and dangerous environment right in the heart of campus – in turn, preventing Jewish students from accessing public facilities – constitutes a violation of the Free Exercise Clause, the Free Speech Clause, and the Equal Protection Clause. It also implicates Title VI, which provides that “[n]o person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

The requested preliminary injunction would require that a plaintiff “establish[es] that he is likely to succeed on the merits, that he is likely to suffer irreparable harm” without issuance of an injunction, “that the balance of equities tips in his favor, and that an injunction is in the public interest.”

The plaintiffs plainly meet those criteria. Without judicial intervention, there can be no guarantee that Jewish students will be able to safely access the public educational benefits to which they are entitled when they return to campus next month. As Becket Fund president Mark Rienzi said last month in congressional testimony, these episodes sound more like 1930s Germany than 2020s America. But there is a way forward. Rienzi said:

“Together, we can defeat the scourge of antisemitism in our institutions of higher learning and society by ‘giving to bigotry no sanction, to persecution no assistance.’ Together, we can live up to George Washington’s promise that in this country, none shall be made afraid on account of his faith or ancestry. And together, we can ensure that the promises of our Constitution and our civil rights laws are kept and safeguarded.” 

Kudos to the Becket Fund for taking a stand against ignorance and intolerance. We’ll be following this case closely.

​When Louisiana passed a new law requiring the Ten Commandments to be displayed in all public classrooms, a debate began that will undoubtedly be resolved only in a federal court.
 
Defenders of the law point out that the Ten Commandments are foundational to Western civilization and much of American history. Doesn’t that justify their posting in terms of civic education?
 
We agree that stripping all religion out of American education would be ahistorical. One cannot teach children about the origins of the American nation or the forces that sparked the American Civil War and the civil rights movement a century later without exploring the role of religion. Even in this context, however, the Ten Commandments seems more like an effort to impart religious moral guidance than teaching civics.
 
Critics respond that the posters violate the First Amendment’s prohibition against the establishment of religion. Doesn’t that justify forbidding posting Judeo-Christian scripture? The American Civil Liberties Union contends that the Ten Commandments mandate constitutes an “unconstitutional religious coercion of students.” A federal court will have to determine if Louisiana’s Ten Commandment mandate violates the Establishment Clause under a historical understanding of similar laws at or near the time of the Bill of Right’s ratification.
 
What is getting lost is that Louisiana is taking another step that presents a better way forward. The state is fostering educational pluralism in a way that includes those who seek a religious education for their children. Louisiana recently expanded its school choice program to allow for vouchers for families to choose private schools.
 
The constitutionality of Louisiana’s school choice vouchers is enhanced by a Supreme Court decision, Carson v. Makin in 2022, and by other recent rulings holding that funding made available for secular schools must also be equitably available to religious schools. The new Louisiana vouchers will enable many children to attend quality private schools, whether religious schools or purely secular. All such schools must meet state standards in the teaching of science, history, civics, math, and other subjects.
 
Enhancing the right of parents to choose values they want to extend to their children – whether secular or religious – is a fruitful path that manages to thread the needle for pluralism, educational standards, and, for those who choose it, a religious education.

​The U.S. Supreme Court recently ruled in NRA v. Vullo that New York Financial Services superintendent Maria Vullo unlawfully discriminated against a leading firearm advocacy organization by coercing financial institutions to de-bank them.
 
This case implicates a disturbing trend in corporate America far beyond the dictates of state regulators and politicians. In 2022, JPMorgan Chase 86’ed the bank account of the National Committee for Religious Freedom, run by former Kansas governor and U.S. Sen. Sam Brownback. The bank refused to reinstate the account unless NCRF disclosed its private donor information.
 
The Alliance Defending Freedom fought back, spearheading a campaign against the bank that included the development of a “Viewpoint Diversity Score Business Index,” measuring private companies’ respect for religious freedom. According to ADF, Chase agreed to change its policies, committing “to ongoing engagement on how their company can protect free speech and religious liberty.”
 
Under the law, large corporations are generally free to have opinions and to choose their customers. The First Amendment, after all, only applies to government actors like Commissioner Vullo, not to private entities like Chase. But the values of a First Amendment society are enabled and underscored by pluralism in the commercial sector. This is especially true for service providers like a bank and other businesses that offer public services, often under common carrier law. (For businesses that offer expressive services, from newspapers to social media providers, they have an absolute right to curate their content – though they, too, would do our society a civic good by allowing space for a wide diversity of viewpoints.)
 
Americans should not have to be concerned about a potential loss of financial empowerment just because of their religious or political views. Corporate cancellations are a bad look. While companies may not be subject to First Amendment strictures, they surely are subject to public relations disasters. This was one of them. Protect The 1st congratulates Chase for listening and reversing its policy.

​When the U.S. Supreme Court put challenges to Florida and Texas laws regulating social media content moderation on the docket, it seemed assured that this would be one of the yeastiest cases in recent memory. The Supreme Court’s majority opinion came out Monday morning. At first glance, the yeast did not rise after all. These cases were remanded back to the appellate courts for a more thorough review.
 
But a closer look at the opinion shows the Court offering close guidance to the appellate court, with serious rebukes of the Texas law.
 
Anticipation was high for a more robust decision. The Court was to resolve a split between the Fifth Circuit, which upheld the Texas law prohibiting viewpoint discrimination by large social media platforms, while the Eleventh Circuit upheld the injunction against a Florida law regulating the deplatforming of political candidates. The Court’s ruling was expected to resolve once and for all the hot-button issue of whether Facebook and other major social media platforms can depost and deplatform.
 
Instead, the Court found fault with the scope and precision of both the Fifth and the Eleventh Circuit opinions, vacating both of them. The majority opinion, authored by Justice Elena Kagan, found that the lower courts failed to consider the extent to which their ruling would affect social media services other than Facebook’s News feed, including entirely different digital animals, such as direct messages. The Supreme Court criticized the lower courts for not asking how each permutation of social media would be impacted by the Texas and Florida laws.
 
Overall, the Supreme Court is telling the Fifth and Eleventh to drill down and spell out a more precise doctrine that will be a durable guide for First Amendment jurisprudence in social media content moderation. But today’s opinion also contained ringing calls for stronger enforcement of First Amendment principles.
 
The Court explicitly rebuked the Fifth Circuit for approval of the Texas law, “whose decision rested on a serious misunderstanding of the First Amendment precedent and principle.” It pointed to a precedent, Miami Herald Publishing Co. v. Tornillo, in which the Court held that a newspaper could not be forced to run a political candidate’s reply to critical coverage.
 
The opinion is rife with verbal minefields that will likely doom the efforts of Texas and Florida to enforce their content moderation laws. For example:
 
“But this Court has many times held, in many contexts, that it is no job for government to decide what counts as the right balance of private expression – to ‘un-bias’ what it thinks is biased, rather than to leave such judgments to speakers and their audiences.”
 
The Court delved into the reality of content moderation, noting that the “prioritization of content” selected by algorithms from among billions of posts and videos in a customized news feed necessarily involves judgment. An approach without standards would turn any social media site into a spewing firehose of disorganized mush. The Court issued a brutal account of the Texas law, which prohibits blocking posts “based on viewpoint.” The Court wrote:
 
“But if the Texas law is enforced, the platforms could not – as they in fact do now – disfavor posts because they:
 

• support Nazi ideology;
• advocate for terrorism;
• espouse racism, Islamophobia, or anti-Semitism;
• encourage teenage suicide and self-injury;
• discourage the use of vaccines;
• advertise phony treatments for disease;
• advance false claims of election fraud.”

 
So what appeared on the surface to be a punt is really the Court’s call for a more fleshed out doctrine that respects the rights of private entities to manage their content without government interference. For a remand, this opinion is surprisingly strong – and strong in protection of the First Amendment.