The Violent Threat to Free Expression
This month’s brutal assault on Indian-born British-American novelist Salman Rushdie was not just a violent attack on a prominent author. It was an attack on free expression itself.
In response to The Satanic Verses, a book Rushdie wrote in 1988, the supreme leader of Iran, Ruhollah Khomeini, issued a fatwa against the author. Since then, there have been numerous attempts on Rushdie’s life. This latest attack is just the most successful of them.
There has been no shortage of commentators who have stated in the same breath that, while the fatwa and assassination attempts were wrong, Rushdie should not have published a book that would offend millions of Muslims around the world. Any attempt to balance the interests of free expression with death threats will only cede territory to violence.
This month’s attack only further proves that speech rights around the world are increasingly threatened by political violence. If someone like Rushdie, who has had to flee his home and receive security, can still be targeted, so can anyone who says the wrong thing. Citizens of free societies should be able to disagree with one another, even stridently, without demonizing their opponents.
In 2020, Rushdie, along with other prominent figures, signed an open letter published in Harper’s Magazine slamming the spread of censorship and intolerance. The letter read: “The way to defeat bad ideas is by exposure, argument, and persuasion, not by trying to silence or wish them away.” Now, more than ever, the right to free expression around the world requires even greater defense.
It might sound like a trivial question at a time when speech rights are threatened all around the country, but it’s at the forefront of several First Amendment legal battles.
The role and importance of online speech has grown dramatically in the last decade and lots of government broadcasts, outreach, and business is now done through official social media accounts. For example, each President gets his own official Twitter account, through which he can speak to the public.
Such accounts have altered the nature of social media and have become the subject of controversy. In 2017, the Knight First Amendment Institute at Columbia University sued President Trump for blocking American citizens on his official Twitter account. They argued that blocking accounts suppresses speech and prevents users from reading official government policy and announcements. The Knight Institute won in both the District Court for the Southern District of New York and the Court of Appeals for the Second Circuit. The Supreme Court vacated the case in 2021 after President Trump was not reelected.
A more recent case seeks to argue along the same lines against other official government accounts. (A hat tip to Eugene Volokh of Reason Magazine for detailing the arguments of this case.) Bruce Gilley is a political science professor at Portland State University. Gilley has filed suit against Tova Stabin, the communications manager of the University of Oregon Division of Equity and Inclusion for blocking him on Twitter. The University of Oregon is a public university, meaning its official Twitter accounts are run by the government. Gilley’s complaint reads:
“In both cases, the University of Oregon has created the @UOEquity Twitter account to engage with the public and to solicit feedback. Its purpose is to interact with the public and to foster exchange. That is a public forum. Defendant Stabin was and is a state actor acting in the course and scope of her employment when she blocked, and continues to block, Bruce Gilley from the @UOEquity account. Defendant Stabin acted in a viewpoint discriminatory manner when she blocked Bruce Gilley from the @UOEquity Twitter account.”
It remains to be seen if other courts will stick to the official business framework that worked so well for the Knight Institute.
The Foundation for Individual Rights and Expression (FIRE) deployed it recently when they sent a letter to the Director of Media Services for the New York State Senate requesting that the Senate stop blocking Twitter critics and hiding their tweets. The New York State Senate’s Twitter account frequently blocks or hides criticism of legislation and legislators. The letter reads: “courts across the country have recognized that when a government actor invites public comments on social media, the government actor’s regulation of that online speech is restrained by the First Amendment.”
PT1st looks forward to further developments in the state of online speech rights. Additional questions will need to be answered. Would a prohibition on official government accounts blocking other users offer protections to non-Americans? How do we uphold the rights of citizens in an era of online anonymity?
The United States Court of Appeals for the Ninth Circuit may be preparing to revisit its ruling that would destroy the sacred lands of the Apache.
Protect The 1st has long covered the plight of Apache, whose access to the Oak Flat area of the Tonto National Forest has been recognized as sacred to their religion by treaty with the U.S. government since the 19th century. A foreign mining consortium, Resolution Copper, has plans enabled by a midnight deal in Washington in which the company will mine copper in the Apache’s sacred site, to sell to China, and leave a gaping crater the length of the Washington Mall and the depth of two Washington Monuments.
In June, a divided Ninth Circuit held that the land swap could go forward, dismissing the rights of the Apache under the Religious Freedom Restoration Act (RFRA), as well as the First Amendment rights of these American citizens. Many legal observers were dumbfounded. How could the absolute destruction of a site that is the Vatican Hill or Temple Mount of the Apache not be an infringement of their religion – or even a substantial burden on their religious exercise?
At the time, Judge Marsha B. Berzon dissented from the majority, writing “it would be an exceedingly odd statute that recognized and provided remedies for government-created substantial burdens on religious exercise … when it directly prevents access to religious resources. Yet the majority reaches just that illogical interpretation of RFRA in this case, without acknowledging its incoherence.”
Now the court has asked the Apache Stronghold and its attorneys at the Becket Fund to file briefs outlining their positions on whether the case should be reheard.
“This is highly unusual,” said Gene Schaerr, general counsel of Protect The 1st. “What is most telling is that this en banc request was not prompted by the actions of the Apache and their attorneys. Though we can’t be certain, it appears one or the other Ninth Circuit judges took a good hard look at the Panel’s opinion and saw the holes.”
Religious Schools and National Vibrancy
Robert Pondiscio, senior fellow at the American Enterprise Institute and a former New York City public school teacher, and Elli Lucas, research assistant at the American Enterprise Institute, wrote Monday in The Washington Examiner:
“Not only can [school] choice provide a way out for students in failing schools, but it can also enrich our nation by enhancing its vibrancy, variety, and vivacity. Our nation is better off when its schools are not a bland monoculture but rather match the varied dynamism of its people and their aspirations.”
Protect The 1st would only add that religious schools are a strong contributor of vibrancy and variety for a bland monoculture. Empowering schools that offer quality education standards while also continuing faith traditions – be they Christian, Jewish, Muslim, Sikh, or Hindu – is a powerful use of the Free Exercise Clause to the benefit of all.
Others, Nones, and Religious Education
It has been fashionable for some time now to insist that religiosity in America is in a freefall decline. Now, it seems as though the reports of American religiosity’s death are greatly exaggerated.
According to a study described in a recent Wall Street Journal article, most studies showcasing religious decline in America erroneously lump new congregations, denominations, and non-Christian religions into “Others” and “Nones.” The scale of the error is so significant that pollsters may be missing somewhere around one-third of total religious adherents in the United States. Many of these so-called others and nones are non-Christian religions and breakaway congregations from America’s mainline Protestant denominations which, indeed, have been in freefall decline for decades. A religious transformation is underway in America, but not the one most commentators thought.
This religious transformation demonstrates why it is just as important as ever that Americans continue to enjoy the right to educate their children according to their faith traditions. Protect The 1st supports efforts to protect religious schools and education for people of faith as an expression of the “Free Exercise” clause of the First Amendment.
Brad Wilcox at the Institute for Family Studies said, “childhood religiosity predicts a variety of positive outcomes.” When compared to the general population, adults who went to church routinely from their youth onward report higher rates of happiness, community engagement, and a greater sense of purpose and meaning, while also reporting lower rates of boredom.
Hostility to religion, however, could become a self-fulfilling prophecy.
Barriers to the ability of religious adults to raise their children according to their faith traditions would likely lead to the decline of religion in a couple of generations. Recent Supreme Court decisions such as Carson v. Makin, which struck down the state of Maine’s exclusion of religious schools from participation in rural vouchers, are welcome reminders that many of our leaders today continue to recognize the role of religion in America. There had to be, after all, a good reason for the founders to include the free exercise of religion in the First Amendment.
Our senior policy advisors and former congressmen, Bob Goodlatte and Rick Boucher, wrote an important piece on the need for federal law to protect journalists.
Should the government be free to dig into the records, notes, phone logs and emails of journalists or subpoena them into federal court to catch a leaker?
The consequences of a California law continue to unfold, harming youth sporting organizations while degrading the First and Second Amendments.
Protect The 1st reported earlier this month on the signing of AB 2571 into law, which prohibits the marketing of firearms or related products in a manner that “reasonably appears to be attractive to minors.” While intended to tamp down on soaring rates of gun violence, this new law has so far curbed wholesome youth groups and sporting activities, along with freedom of expression.
Count among the casualties of extortionate speech penalties is the California State High School Clay Target League. Faced with fines of up to $25,000, the League posted on its website that it has been forced to shutter its service to young Californians.
Another youth target shooting organization, the Scholastic Target Shooting Foundation, has had to put up a warning on its website that reads: “The information on this website is not intended for minor audiences in California. If you are a minor in California, please do not continue to this website.” California is forcing service organizations to silence themselves with a digital gag.
The response of some in Sacramento to the outcry of hundreds of thousands of California youths losing access to a cherished sport shows a lack of knowledge and appreciation for this sport. “Guns are not toys – they are deadly weapons,” said one Assemblymember. “California has some of the strongest gun laws in the country and it is unconscionable that we still allow advertising weapons of war to our children.”
On its website, California State High School Clay Target League president John Nelson countered: “The League is the safest sport in high school. Over 1,500 schools across the nation have approved our program. Hundreds of thousands of students have participated, and there has never been an accident or injury.”
These are not weapons of war, and California high school students won’t be waging one anytime soon. Sporting organizations use scaled-down or modified firearms that are appropriate for younger users. All this law has done so far is criminalize speech in a way that denies safe and supervised sports to youth, while not touching committed gun criminals.
In their haste to place new restrictions on guns, legislators in Sacramento have recently run roughshod over the freedom of speech protected by the First Amendment. This is a byproduct of enacting AB 2571, a law prohibiting the marketing of firearms or related products in a manner that “reasonably appears to be attractive to minors.”
The law is part of a broader series of initiatives by California lawmakers adopted in the name of preventing gun violence in the wake of a series of devastating shootings across the country. While Protect The 1st supports focused initiatives to reduce the criminal use of guns, vague legislation targeting speech about lawful products because they might appeal to a lawful subset of gun users – with at best dubious impact on illegal shootings – infringes on the First as well as the Second Amendment rights of Americans.
Among the various problems with California’s new anti-marketing law is that it is overly broad, has serious consequences for lawful gun users in wholesome youth groups and sporting activities, and chills a tremendous amount of legitimate speech in a viewpoint discriminatory manner.
For example, the law prohibits “images or depictions of minors in advertising and marketing materials to depict the use of firearm-related products." But many groups, from sporting associations to the Boy Scouts, use such advertising to generate interest in organizations that give youth much-needed structure, companionship, and character-building activities.
One such group is the California Grizzlies Junior Rifle Program, “a sports program consisting of youths aged 13-20 and focused on providing leadership development in the training of firearm safety, marksmanship, and competition to encourage personal growth, self-discipline, responsibility, team, and life skills development.”
Until recently, the front page of the Grizzlies website featured an image of several youth members sitting together. Now, the entire website is inaccessible and displays a message: “Due to recent California legislation, we are making some updates to our site. We will be back shortly.”
California’s new law sharply proscribes the ability of groups like the California Grizzlies to promote their youth organization in the state or to obtain sponsors for its youth sporting events. Indeed, it even seems to restrict the group from selling T-shirts and hats with its name or the name of various events on them. Of course, the law has no impact on groups or marketing that criticizes guns or shooting events, and thus commits the cardinal First Amendment sin of viewpoint discrimination. Ultimately, it curtails such a tremendous amount of speech that it could mean the death of some sports and sporting groups entirely.
California is not the only state cracking down on Second Amendment rights by targeting those of the First.
In New York, lawmakers have passed a new requirement that citizens seeking gun permits must surrender their social media accounts for review, without probable cause or a warrant for such an intrusive invasion of privacy. Although touted as an attempt to detect missed warning signs about when someone might commit gun violence, the law would give enforcement officials an unprecedented window into the political and religious beliefs and associations of American citizens.
The outcome evokes the Philip K. Dick story and Steven Spielberg movie, Minority Report, in which people are arrested not because they have done anything wrong, but because of a prediction that they might do something wrong in the future. New York’s law promises to be just as invasive as Minority Report’s enforcement against “precrime,” but a lot less effective. And such an intrusion is far more likely to be abused for political purposes, as history has repeatedly shown with past efforts by the FBI and other agencies to monitor and track political associations.
While legitimate attempts to curtail America’s troubling spate of unlawful gun violence are vital, they can never come at the expense of our Constitutional rights or involve overbroad restrictions on the rights of citizens who have done nothing wrong. Such rules must be more narrowly tailored to protect the rights of all Americans.