Christians to Hold Pilgrimage and Prayer Protest to Save Apache Sacred Site Oak Flat on Nov. 410/31/2023
When Protect The 1st filed an amicus brief before the Ninth Circuit seeking to stop a land swap that would transform the sacred lands of the Apache tribes into a giant mining pit, we had no lack of company.
Sponsors of the brief included the Jewish Coalition for Religious Liberty, the International Society for Krishna Consciousness, The Church of Jesus Christ of Latter-Day Saints, and the Sikh Coalition. We declared: “While, on its surface, this case concerns Native American religious rights, the district court’s erroneously narrow standard for what qualifies as a substantial burden under RFRA (the Religious Freedom Restoration Act) will harm Jewish, Muslim, Sikh, Buddhist, Hare Krishna, Christian and all manner of religious communities, organizations and individuals.” Now the Ninth Circuit, after an extraordinary en banc rehearing, is considering the fate of lands recognized by the U.S. government as sacred and held in trust since 1852. If the foreign mining consortium is allowed to proceed, it will transform the Apache’s sacred lands, leaving a hole in the ground as long as the Washington Mall and as deep as two Washington monuments. The ability of the government to ignore RFRA and utterly destroy a religious site is drawing protest from Christian faith leaders and those of other religions who will make a Prayer Rising pilgrimage to Oak Flat on Saturday, Nov. 4. Dr. John Mendez, retired pastor of Emmanuel Baptist Church in Winston-Salem, North Carolina, says: “It’s not just the Apache struggle, it’s all our struggle.” Since 2016, the American Civil Liberties Union has filed 400 legal actions against the Trump Administration. Yet, true to form, it became the first major institutional voice to defend the former president’s right to speak after Judge Tanya Chutkan of the D.C. Circuit issued a gag order against him.
On Oct. 17, Judge Chutkan issued an order prohibiting the former president from “making any public statements, or directing others to make any public statements, that target (1) the special counsel prosecuting this case or his staff; (2) defense counsel or their staff; (3) any of this court's staff or other supporting personnel; or (4) any reasonably foreseeable witness or the substance of their testimony.” The ACLU, in turn, submitted a motion for leave to file an amicus brief, arguing that the gag order is vague and overbroad, and urging the court to narrow its scope and application. It does not argue that all gag orders are unlawful, only that this specific one is too broad, vague and should be limited in its reach. In general, gag orders can “implicate the public’s and litigants’ First Amendment rights.” They threaten our right of access to courtroom proceedings (particularly concerning for a case with this level of public importance and scrutiny), while functioning as prior restraints on speech, largely disfavored by the courts. According to the ACLU, the first major problem here is the court’s use of the word “target,” which the organization asserts is “unconstitutionally vague.” They write: “The entire order hinges on the meaning of the word ‘target.’ But that meaning is ambiguous and fails to provide the fair warning that the Constitution demands, especially when, as here, it concerns a prior restraint on speech.” The First Amendment, the ACLU explains, dictates that restrictions on speech must be “clearly defined and narrowly framed.” The word “target” could refer to its most “menacing implications,” but it also means merely identifying people or issues in the case. As such, the defendant ex-president “cannot possibly know what he is permitted to say, and what he is not.” The ACLU also asserts that the order is overbroad, encompassing a public official (special counsel Jack Smith) as well as the “substance” of witness testimony, which will inevitably involve issues pertinent to the 2024 election, in which the former president is a declared candidate. As the ACLU notes: “Attempts to gag speech that addresses how the special counsel is conducting his work on the grounds of ensuring the proper and impartial administration of justice, unduly undermine public discussion on matters of public concern that is at the heart of what the First Amendment protects.” Courts have an obligation to safeguard the judicial process, ensure a fair trial for the defendant, and protect the safety of court personnel, witnesses, lawyers for both the prosecution and defense, and jurors. But those legitimate needs do not obviate the constitutional necessity of protecting free speech rights – even those of a controversial former president. A properly limited gag order in pursuit of that goal may be appropriate in this case. The First Amendment does not protect speech like incitement to violence and threats, but any restriction on the defendant’s ability to speak must be carefully tailored to meet the free speech requirements of the First Amendment. A willingness to protect the speech rights of someone with whom you vehemently disagree is the mark of a true constitutionalist. ACLU executive director Anthony Romero said, “No modern-day president did more damage to civil liberties and civil rights than President Trump, but if we allow his free speech rights to be abridged, we know that other unpopular voices — even ones we agree with — will also be silenced.” Protect The 1st commends the ACLU for standing up for speech – even if, for many of its donors, it may feel wrong. Loffman v. California Department of Education In March, religious parents and schools in California brought a lawsuit challenging a state policy barring them from accessing special education funding for children with disabilities. In August, the U.S. District Court for the Central District of California ruled against the plaintiffs, dismissing the case despite clear, contravening Supreme Court precedent supporting their claims. Now, the plaintiffs (represented by the Becket Fund) are appealing before the Ninth Circuit.
It is hard to understand how California can fail to recognize the constitutional implications of its policy, which permits federal and state special education funding for disabled children at secular private schools but prohibits it for religious private schools. This funding originates with the Individuals with Disabilities Education Act (IDEA), a federal law ensuring that all children with disabilities in America can receive a free, appropriate public education that meets their needs. (The word “public” in this context is a term of art that refers to a “public expense” – either at public or private schools.) What’s more, there is direct, on-point precedent prohibiting such policies. The U.S. Supreme Court in Carson v. Makin struck down a Maine law which, like the California law, allowed private secular schools and families to access public funding but excluded religious schools and families. Further, in Fulton v. City of Philadelphia, the Court held that a law burdening religion triggers strict scrutiny if it allows for discretionary exemptions. There is no compelling government interest in discriminating against religious people; nor does categorically exluding religious institutions from receiving public funding constitute narrow tailoring. The plaintiffs in this case are Los Angeles-area Orthodox Jewish families who wish to send their special-needs children to Orthodox Jewish schools, as well as two Orthodox Jewish schools that want to welcome children with special needs. Such accommodations are expensive, and IDEA dollars go toward paying for staff training, assistive technology, and programmatic expenses. By all rights, the plaintiffs should be able to access these funds. Protect The 1st continues to support the plaintiffs and Becket attorneys in their efforts to ensure all students with disabilities in California can receive a quality education in line with their academic needs and religious heritage. To quote Becket’s brief, the California legislature forces parents to “choose between the Jewish education that is their birthright and the governmental special-education assistance they are entitled to as Americans.” Protect The 1st believes the issue before the court is a simple one: Parents shouldn’t have to choose between the free exercise of their religion under the First Amendment and support for their disabled children. UPDATE: Supreme Court to Hear Arguments on Government Influence Over Social Media Platforms10/24/2023
In July we analyzed an order issued by Judge Terry A. Doughty of the U.S. District Court for the Western District of Louisiana that enjoined the Biden Administration and a wide range of federal agencies from “urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech posted on social-media platforms.”
Last month, PT1st covered a subsequent ruling from the Fifth Circuit Court of Appeals, which significantly narrowed the scope of the district court’s injunction, reducing the district court’s ten prohibitions on government communications with social media platforms to one, and greatly limiting the agencies subject to the injunction to the White House, the FBI, the surgeon general’s office and the CDC. Now, acting on a request for review by the government, the U.S. Supreme Court has agreed to hear the case, staying the lower courts’ injunction in the meantime. At least until the High Court rules on the case, Biden Administration officials are not barred from interacting with social media platforms to combat what they view as misinformation. Justice Alito, joined by Justices Gorsuch and Thomas, dissented from granting the stay, writing: “At this time in the history of our country, what the court has done, I fear, will be seen by some as giving the government a green light to use heavy-handed tactics to skew the presentation of views on the medium that increasingly dominates the dissemination of news. That is most unfortunate.” Protect The 1st is not so sure. Given that the Court is now set to hear this case, executive branch officials will have good reason to be especially circumspect in the interim. Whatever happens, this case will be of great importance for the First Amendment’s application to online speech and permissible levels of government involvement in urging platforms to moderate content. And it is only one of several big cases set for consideration before our highest court in the coming months. The Supreme Court also recently agreed to hear a dispute stemming from Florida’s and Texas’ efforts to prohibit social media companies from engaging in some forms of content moderation, which the platforms have always viewed as protected by the First Amendment. In another case set in a hearing later this month, the Court will tackle the question of whether public officials can block their critics on social media. Regarding the present controversy, the Fifth Circuit ruled in September that the White House, the Surgeon General’s office, the FBI, and the CDC either coerced or significantly encouraged social media platforms to moderate protected speech primarily regarding election misinformation and misinformation about the pandemic. In the stay application, Solicitor General Elizabeth B. Prelogar argued that the platforms are private entities that made independent content moderation decisions. The government’s interactions with them, in turn, constituted routine advice consistent with its duties to protect public health and safety. “A central dimension of presidential power,” wrote Prelogar, “is the use of the office’s bully pulpit to seek to persuade Americans – and American companies – to act in ways that the president believes would advance the public interest.” The attorneys general of Missouri and Louisiana, both plaintiffs in the case, responded that the bully pulpit “is not a pulpit to bully,” arguing that the administration went too far in its communications by engaging in threatening and coercive behavior. As such, they assert, the decisions to remove or downgrade certain posts and accounts constituted government action. “The government’s incessant demands to platforms,” they wrote, “were conducted against the backdrop of a steady drumbeat of threats of adverse legal consequences from the White House, senior federal officials, members of Congress and key congressional staffers — made over a period of at least five years.” If, in the end, the Supreme Court determines that the government is threatening social media platforms, that will be a consequential finding. As the dissenting Justices write, “Government censorship of private speech is antithetical to our democratic form of government ...” At the same time, the government must be able to speak to private actors, including social media platforms, on issues of public concern. Ultimately, we need a roadmap for distinguishing between legitimate government action and coercion. A robust discussion at the national level is best suited to parse the nuances at play when it comes to social media and free speech. Congress should hold bipartisan hearings to determine the circumstances where government advice may be helpful to platforms’ content moderation decisions versus the circumstances where such advice may be coercive. We’ll be watching this case closely as it progresses. With the looming inauguration of Governor-elect Jeff Landry, Louisiana may soon become the 11th state in the nation to offer universal school choice – that is, if Texas doesn’t get there first.
Earlier this year, the Louisiana House of Representatives passed HB 98, authorizing the creation of education savings accounts – matching public per-pupil funding levels – that parents can use to send their children to the schools of their choice. The Senate failed to take up the legislation before the session’s adjournment. With the arrival of Landry in the Governor’s Office, Louisiana will have several reasons to renew their efforts. For one, they are good politics. Sixty-eight percent of adults and 75 percent of parents with school-aged children in Louisiana support education savings accounts. For another, Landy himself is a strong supporter of school choice, affirming during his 2010 congressional campaign that: “We need to adopt policies that empower parents to make decisions about their own child’s education – including home school, charter schools, church-based schools and other alternatives.” Protect The 1st wholeheartedly agrees. The school choice movement is vital to the future of American society, improving educational outcomes while offering parents the ability to exercise their First Amendment rights by extending their standards and values across generations. Research proves that choice brings powerful improvements in academic results and in children’s lives. The First Amendment’s guarantee of the free exercise of religion, meanwhile, must include room for parents to choose schools that reflect their beliefs, while adhering to state standards in learning. Despite claims to the contrary, choice doesn’t hurt or defund public schools. Rather, permitting enrollment competition often improves academic performance at public schools. Furthermore, public school funding is not particularly responsive to enrollment numbers. Local funding often comes from local property taxes, which redound to the benefit of public schools no matter what, in addition to federal Title 1 funding. Ten states have passed universal school choice since 2021, spreading across the nation like a prairie fire. Texas legislators are currently in the middle of a special session called by Gov. Greg Abbott to line up the Lone Star State – the nation’s second-most populous state – for school choice. The Senate has already passed a bill creating education savings accounts – now it’s up to the Texas House. School choice operates on the principle that competition breeds innovation. Allowing for choice not only empowers parents – it challenges public schools to do better. And more and more states are taking up that challenge. Whether Texas or Louisiana becomes the next state to offer universal school choice, it’s parents and students who will win. Mahmoud v. McKnight The Becket Fund for Religious Liberty filed an emergency request for an injunction against a large urban school board in Maryland that forces parents to send their pre-K and elementary school children to mandatory instruction that many see as too sexually explicit for such young students. This filing follows Becket’s appeal in this case that has deep implications for parental rights and religious liberty.
Here’s the background: Becket in May had filed a federal lawsuit in the U.S. District Court for Maryland challenging the Montgomery County Board of Education’s decision to no longer notify parents or honor requests to opt-out of sex-ed classes and controversial readings on sexually charged topics. Some parents may be comfortable with this instruction, but many parents are not. The decision followed the Board’s fall 2022 announcement of over 20 new “inclusivity” books for its pre-K through eighth grade classrooms on sexually charged topics. Maryland law requires parental notification and the ability to opt-out for lessons involving topics that may violate the free exercise of religion and the right of parents to transmit their religious beliefs. In response, Becket filed a suit representing a diverse coalition of religious parents including Muslims, Catholics, Protestants, and Orthodox Christians. After the district court ruled against the parents in August, the case is on appeal before the federal Fourth Circuit court. In that appeal to the Fourth Circuit, Becket argues that the Board’s stance is tantamount to saying “that once children enter the classroom, parents lose any right to opt their children out of ideological instruction.” In its opening brief, Becket now tells the court: “Maryland requires schools to provide notice and opt-outs for any ‘instruction on family life and human sexuality.’ And the Board’s Religious Diversity Guidelines allow opt-outs from any ‘discussions or activities’ that ‘impose a substantial burden on … religious beliefs.’ Indeed, that’s the law not only in Maryland, but also in nearly every state in the Nation.” This case should be straightforward. The Montgomery County Board of Education is clearly flouting not only state law, but its own guidelines to force students to learn content the school knows many parents will find objectionable. Even the Board’s own elementary school principals protested that the storybooks are “not [age] appropriate” and that it’s always “problematic to portray elementary school children falling in love with other children, regardless of sexual preferences.” They further warned that the instructional materials are “‘dismissive of religious beliefs” and “seek to ‘shame’ students who disagree.” Becket objects to the district court’s determination that “exposing the Parents’ children to religiously forbidden instruction imposes no religious burden. The district court reasoned that parents could counter the instruction afterwards, send their kids to private school, or homeschool.” In other words, you can always quit your job to teach your child at home or spend many thousands of dollars on private school tuition. Protect The 1st is pleased to support Becket’s appeal to the Fourth Circuit Court of Appeals. Parents have the right to be notified when controversial sexual content – that interferes with the free exercise of religion – is taught in schools. The First Amendment of our Constitution guarantees it, U.S. case law reinforces it, and our nation’s parents demand it. PT1st looks forward to further developments in this case. The Apache Stronghold’s case to protect Oak Flat, sacred tribal lands within Arizona’s Tonto National Forest, is still in play. If a previously government-approved transaction is allowed, Oak Flat will be turned over to a foreign mining consortium, Resolution Copper, to be transformed into a crater as long as the Washington Mall and as deep as two Washington Monuments. Although a federal district court initially ruled in favor of the Apache, the Ninth Circuit U.S. Court of Appeals in 2022 reversed the lower court ruling.
Then the Ninth Circuit veered back and reheard the Apache’s case in an en banc hearing. We are currently awaiting a decision and hoping for an Apache victory. Now there’s yet another reason for cautious optimism. The Biden Administration, in a letter from Forest Service Associate Deputy Chief Troy Heithecker to Terry Rambler, chair of the San Carlos Apache tribe, expresses hopes to finalize a memorandum of understanding to set parameters around formal talks. The San Carlos Apache Tribe has for years pushed for a consultation agreement, so this letter comes as a heartening development. Meanwhile, the Ninth Circuit, which reheard oral argument in March before a full panel of 11 judges en banc, remains a wild card. At issue is whether the Oak Flat mining deal constitutes a “substantial burden” of the free exercise of religion guaranteed by the First Amendment and the Religious Freedom Restoration Act (RFRA). Granting requests for a rehearing are exceedingly rare, limited to about one-half of one percent of cases. So the rehearing served as a rare chance for the court to reverse itself. At worst, dissenting judges can get their opinions on record as fodder for a bid for the U.S. Supreme Court to hear the case. If the Supreme Court were to accept an appeal, it could fundamentally alter the calculus in favor of the Apache. The shadow of Justice Neil Gorsuch looms large over Native American issues. Gorsuch has ruled in favor of Native American tribes in nearly a dozen cases, often casting his vote to give the Court’s liberal wing a rare majority. When the Ninth Circuit recently ruled against a different Native American tribe in favor of the government in a similar case out of Oregon, the government agreed to a settlement once it seemed possible the case could land before the Supreme Court. Protect The 1st is pleased by the developments in the Apache Stronghold’s case to protect Oak Flat. The negotiation between the Apache and the Biden Administration should not deter the Ninth Circuit from finding in favor of the Apache on religious liberty grounds. As defenders of the First Amendment’s guarantee of freedom of religion, we look forward to further developments in the protection of sacred lands. Native American Tribes Win Settlement From Federal Government Over Destruction of Sacred Site10/11/2023
Last year, the Protect The First Foundation filed an amicus brief urging the Ninth Circuit Court of Appeals to hear the plight of the Yakima Nation and the Confederated Tribes of Grand Ronde. These two Native American groups sued when the federal government widened U.S. Highway 26 in Eastern Oregon, demolishing an ancient stone altar and grove of trees sacred to the religion of these Americans.
The U.S. District Court in Oregon had first found that the U.S. Federal Highway Administration had not violated the religious rights of the tribes under the Religious Freedom Restoration Act (RFRA). A Ninth Circuit Court panel further did not see that it had the authority, or a need, to attempt remediation. Compounding injury with insult, the Ninth Circuit ruled the government was not responsible for the destruction of the sacred site and dismissed the case as moot. Accordingly, Protect The 1st, along with the Jewish Coalition for Religious Liberty, the Sikh Coalition, and the American Islamic Congress, petitioned the U.S. Supreme Court to reconsider the matter. Perhaps not wanting to face a High Court notably protective of the First Amendment and religious expression, the federal government quickly agreed to a settlement. The government will replant the grove of native trees, pay for the reconstruction of the sacred stone altar, and recognize the historic use of the site by Native Americans. The restoration of the sacred site is set to be completed by spring 2024. The good news comes from the Becket Foundation, which helped the tribes file their petition. “Our nation has a long, dark history of needlessly destroying Native American sacred sites without consequence,” said Luke Goodrich, Vice President and Senior Counsel at Becket. In a thread on X (Twitter), Goodrich said, “The government can never fully undo the damage it caused in this case. But this agreement is one step in a better direction--allowing these tribal members to resume religious practices that the government had taken away.” The stunning about-face comes despite the government’s consecutive wins in lower and appellate courts. Perhaps the government took note that Justice Neil Gorsuch has ruled in favor of Native American tribes in nearly a dozen cases, often casting his vote to give the Court’s liberal wing a rare majority. The settlement comes as other cases involving Native American land are still pending. The Ninth Circuit is still considering Apache Stronghold v. United States. In that case, the federal government is seeking to give away another Native sacred site to a multinational mining giant which plans to turn the site into a copper mine. Protect The 1st congratulates the Yakima Nation and the Confederated Tribes of Grand Ronde as well as the Becket Foundation for their victory. The religious liberty protections of the First Amendment apply to all Americans, but most especially to religious minorities more vulnerable than faiths with many adherents. We hope this settlement will send a message to careless government bureaucrats to be more respectful of Native American religious sites. We especially hope this same change of heart will also come for the Apache and their case now before the Ninth Circuit. Can a distinction be made in school libraries between book censorship and sensible curation?
Some books most people would agree are clearly inappropriate – especially for children. On the other hand, giving in to moral panic and succumbing to our more censorial instincts can deprive young people of vital information, not to mention the ability to access many classic literary touchstones. Consider Florida, where 40 percent of all book bans nationwide took place during the last school year. In July, the state legislature passed HB 1069, revising processes for parental objections to educational materials. The new law allows parents to unliterally ban books by performatively shocking the conscience of school board members through public readings of sexually charged paragraphs. The provision reads: “Parents shall have the right to read passages from any material that is subject to an objection. If the school board denies a parent the right to read passages due to content that meets the requirements under sub-sub-subparagraph b.(I), the school district shall discontinue the use of the material.” The language provides a specific roadmap for concerned parents, allowing them to attend school board meetings and read the most explicit passages aloud. If board members order them to halt a reading, the book in question is automatically removed. According to some accounts, readers are advised by groups, which have targeted books like Slaughterhouse Five and The Kite Runner, that: “You want to get shut down. Only read the dirtiest bits that we give to you.” Context is everything, of course, and most of us will recognize that books with passages that could be considered objectionable in a vacuum may also convey higher meaning or represent great literary achievements. To Kill a Mockingbird, The Color Purple, The Adventures of Huckleberry Finn, Of Mice and Men, Ulysses, The Grapes of Wrath, The Catcher in the Rye – all contain racy passages and have been subject to book bans at one point or another. An opposite danger is ignoring the rights of concerned parents. In 2022, the Montgomery County School Board introduced a series of “LGBTQ+-inclusive texts” as part of its required curriculum for children as young as four years old. These include works focusing on gender transition and same-sex infatuation, even sexual fetish topics like leather and drag queens – subjects that are obviously outside a four-year-old’s understanding. Parents were outraged for good reason. We should all be able to agree that foisting gender ideology discussions on children barely able to tie their shoes is inappropriate. Yet, the board refused to allow parents to opt-out, violating their sincerely held religious beliefs in the process. In another example of misguided curation policy, the commissioners of Llano County, Texas, responded to complaints about book removals by debating the closure of the Llano County Library System entirely. In Arkansas, the legislature passed a bill making it a crime for librarians to provide purportedly “harmful” material to minors, but the bill defined this broadly as any book with a description of “nudity, sexual conduct, sexual excitement, or sadomasochistic abuse.” A judge enjoined the law, pointing out that – as written – any reading material deemed harmful for a five-year-old minor would also be deemed harmful for a 17-year-old minor, despite obvious differences between the two in maturity and comprehension of adult themes and issues. The Supreme Court addressed this concern in Virginia v. American Bookseller’s Association, Inc., suggesting that an interpretation of the term “harmful to minors” that includes speech protected for older minors would raise First Amendment concerns. Instead of legislation and lawsuits addressing fringe debates, what is most needed in the context of book curation for school-aged minors is common sense. As a nation, we should seek to strike a balance between running roughshod over the rights of parents and throwing out material of literary value or useful for personal development just because it may include a few arguably inappropriate (for some) passages. As the Supreme Court suggests, teenagers have a right to access reading materials consistent with their age-level and understanding. And, from a public policy perspective, they should also be able to learn about the adult world they are about to enter. Parents, meanwhile, have a right to direct the upbringing of their children (especially young children) in accordance with their own values, and should absolutely have a say in what they read. As in all things, moderation – not knee-jerk censorship – is key. The Buckeye Institute, a public policy institute in Ohio, is challenging a long-standing federal law that requires the IRS to demand that nonprofit institutes hand over the identities of their largest donors.
The think tank’s case against IRS collection of sensitive, personal data from Form 990 Schedule B rests on a solid foundation of precedent and practice. Similar measures at the state level, from Alabama to California, have already been stricken by the U.S. Supreme Court on First Amendment grounds. The bedrock principle regarding donor privacy and the First Amendment was established by the Supreme Court in 1958, when it struck down a State of Alabama requirement that the NAACP reveal its donors. That potential for compelled disclosure would almost certainly have led to “harassment, economic reprisal, and physical harm” – danger enough for the Court to act to protect the First Amendment. That reasoning carried through to 2021 when the Supreme Court struck down a California requirement for compelling donor disclosure for nonprofits. Though the California Attorney General promised to keep this private information under lock and key, the state had already compiled an impressive history of accidental disclosures and vulnerability to hackers. In the majority opinion, Chief Justice John Roberts noted early on “that it is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as [other] forms of governmental action.” Protect The 1st added at the time that the disclosure of donor information would be doubly dangerous in the era of flash-mobs, doxing, and cancellation of careers. In Buckeye’s favor as well is the IRS’s long history of failing to protect taxpayer information. In late September, federal prosecutors charged a former IRS consultant, Charles Littlejohn, with the crime of stealing and releasing the tax returns of thousands of Americans between 2018 and 2020. The IRS also had to pay out millions of dollars in settlements to nonprofit organizations who suffered increased scrutiny like Buckeye, and had their confidential applications for tax-exempt status released to the press. In addition, the IRS has repeatedly fallen victim to external data breaches due to inadequate security. The Buckeye Institute is mounting a long-needed challenge to a law that threatens to intimidate free expression. The chilling implications of this IRS statute on the First Amendment alone should be enough for the court to rule in Buckeye’s favor. PROTECT THE 1st Joins 50+ Civil Liberties Groups To Demand Info on FBI Raid of Journalist’s Home10/7/2023
An FBI raid on the home of a Tampa-based journalist, and the seizure of his computer, hard drives, cellphone and all they contain, is raising questions about the fidelity of the Department of Justice to a year-old revision to its News Media Policy announced by Attorney General Merrick Garland. Under that policy, the Department is forbidden from using compulsory legal processes to obtain the newsgathering records of journalists, except in extreme circumstances.
Now a wide spectrum of press freedom and civil liberties organizations, including Protect The 1st, are asking the Department of Justice to provide transparency about this FBI raid in May. The FBI executed its search warrant at the home of journalist Tim Burke, which he shares with his wife, Tampa city councilwoman Lynn Hurtak. The credibility of this extreme action is highly questionable, leaving the Department to explain how this ransacking of a journalist’s home and seizure of his devices differs from the now-widely ridiculed police raid on a newspaper in rural Kansas. An FBI raid on the home of a Tampa-based journalist, and the seizure of his computer, hard drives, cellphone and all they contain, is raising questions about the fidelity of the Department of Justice to a year-old revision to its News Media Policy announced by Attorney General Merrick Garland. Under that policy, the Department is forbidden from using compulsory legal processes to obtain the newsgathering records of journalists, except in extreme circumstances.
Now a wide spectrum of press freedom and civil liberties organizations are asking the Department of Justice to provide transparency about this FBI raid in May. The FBI executed its search warrant at the home of journalist Tim Burke, which he shares with his wife, Tampa city councilwoman Lynn Hurtak. The credibility of this extreme action is highly questionable, leaving the Department to explain how this ransacking of a journalist’s home and seizure of his devices differs from the now-widely ridiculed police raid on a newspaper in rural Kansas. Burke is a former staffer of The Daily Beast and Deadspin. The reporting that put him in crosshairs of the FBI ran in Vice News and Media Matters for America (MMFA). Yet many civil libertarians are voicing suspicions, based on a government response brief, that DOJ may not regard Burke as a valid journalist worthy of the enhanced protections afforded reporters under the Privacy Protection Act of 1980. What we can say is that the FBI criminal investigation involves purported “hacking” of Fox News under the Computer Fraud and Abuse Act and wiretapping laws. Burke reported on embarrassing outtake videos from former Fox News commentator Tucker Carlson’s interview with Ye – formerly known as Kanye West – which were then published by Vice News MMFA. In the outtakes, Ye comes across as deranged and in serious need of help, voicing one ugly, juvenile antisemitic conspiracy theory after another. Carlson cut these lengthy and offensive rants from the interview, making Ye appear far more thoughtful than he is. Carlson concluded his show by saying that Ye is “not crazy” and is “worth listening to.” It is easy to see why even after Fox News fired Carlson that it would find these outtakes embarrassing. Fox News has since been intent on identifying the source of the leak. Fox sent a letter to MMFA earlier this month, demanding the outlet stop airing videos that were “unlawfully obtained.” MMFA president Angelo Carusone responded: “Reporting on newsworthy leaked material is a cornerstone of journalism ... Like any respectable media outlet, we won’t discuss confidential sourcing of any of our materials.” For his part, Burke says he obtained the unaired portions of the Tucker Carlson interview with Ye by visiting a publicly available website used to transmit live feeds of broadcasts. Fox News had apparently uploaded the video to the public site without encrypting it or keeping anyone from downloading it. Burke did use a user ID and password for a “demo account” provided to him by a source. That source, Burke says, found the credentials on a public website, without any restriction on their use. Given these facts suggest an impingement on the First Amendment and the practice of journalism, Attorney General Garland should direct the Department of Justice to provide a degree of transparency in this case. Among questions that need to be answered:
Burke claims he obtained the outtakes from a public source, with help from a source who knew how to access publicly posted credentials to download the raw interview.
There may be legitimate answers to some of these questions that put the Department’s actions in a better light. If they do not, however, DOJ and the FBI run the risk of resembling the bumbling, Barney Fife-like police chief in Kansas who raided a newspaper and, by the way, just resigned. California’s efforts to run roughshod over the Second Amendment by violating the First is hitting a wall in the courts.
Readers may remember that in 2022, PT1st reported that the state had passed AB 2571, which prohibits the marketing of firearms or related products in a manner that “reasonably appears to be attractive to minors.” This law banned advertising for youth groups that promote firearms as a sport, with safety instruction every step of the way. Nominally intended to tackle soaring rates of gun violence, the law had only succeeded in taking down those youth groups and sporting activities. California tried to inoculate itself against legal challenges by passing another law that would make plaintiffs who attempt to test the constitutionality of California’s strict gun laws in court and then lose to have to pay all attorneys’ fees and costs. So, not only was the state going to trample over plaintiffs’ constitutional rights, but they were going to make them suffer for challenging them. Things got dicey for California when the state Attorney General Rob Bonta said he “won’t defend the validity” of the law, a step in the right direction. In September, the U.S. Court of Appeals for the Ninth Circuit enjoined enforcement of the state’s ban on firearm advertisements to minors, holding that it was likely to violate the First Amendment in the upcoming case, Junior Sports Magazines, Inc. v. Bonta. The district court had denied plaintiff’s request for a preliminary injunction, but the Ninth Circuit, no conservative bastion itself, reversed the lower court’s ruling. In that decision, the Ninth Circuit held that AB 2571 “does not directly and materially advance California’s substantial interests in reducing gun violence and the unlawful use of firearms by minors.” Circuit Judge Kenneth Lee writes, “There is no evidence in the record that a minor in California has ever unlawfully bought a gun, let alone because of an ad. Nor has the state produced any evidence that truthful ads about lawful uses of guns—like an ad about hunting rifles in Junior Sports Magazines’ Junior Shooters—encourage illegal or violent gun use among minors … Junior Sports Magazines has shown a likelihood of success on the merits …” In sum, the state Attorney General has declared he won’t defend punitive measures meant to punish constitutionally minded litigants. California’s gun-advertising restrictions have been blocked, pending a final decision by the Ninth Circuit. And the Ninth Circuit itself has stated that firearm sporting enthusiasts are likely to win on the merits. PT1st is pleased to see this sharp turn in fortunes for California and we hope these events encourage the state to reverse course. |
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