Year in Review: 2023

Protect The 1st Drives Growing Support for Press Shield Law, Expansion of School Choice, and Giving Religious Liberty Its Day in Court

​Protect The 1st looks back on an active year with many achievements in the protection of the First Amendment guarantees for free speech, a free press, and the free exercise of religion.

PRESS FREEDOM & THE PRESS ACT

Protect The 1st joined with more than 50 civil liberties groups in October to protest the FBI raid on the home of Tim Burke, a Tampa Bay journalist. The FBI seized Burke’s computers, hard drives, cellphone, and all the information they contain on sources and stories. We commented: “This raid on a journalist’s home and devices seems to be a flat contradiction of Attorney General Merrick Garland’s revision to the Justice Department’s News Media Policy forbidding the use of compulsory legal processes to obtain the newsgathering records of journalists.”
 
In late 2022 Protect The 1st went to Capitol Hill to promote the Protect Reporters from Exploitive State Spying (PRESS) Act – which shields journalists and their sources by granting a privilege to protect confidential news sources in federal legal proceedings. The House passed that bill, but it died in the Senate. The PRESS Act has since been reintroduced and Protect The 1st is pushing for another vote on the House floor in 2024. Protect The 1st Senior Policy Advisor Bob Goodlatte, former chairman of the House Judiciary Committee, said: “Journalism and the right to report on government actions must be better protected. We’ve all seen law enforcement officials under multiple recent administrations issue secret orders to surveil the private communications of journalists. Their freedom to report on government misdeeds is critical to maintaining a free society.” 

SCHOOL CHOICE

In our work with parents, what comes through loud and clear is a desire for children to be taught specific values along with quality instruction. Protect The 1st will continue to work to expand school choice and to protect the free expression of religion through those choices. School choice becomes speech when it is a decision to express one’s values across generations.
 
We thus cheered on a school choice movement that swept the nation like a prairie fire in 2023.

• The spark started in Iowa before spreading to Utah, Arkansas, North Carolina, Indiana, Ohio, South Carolina, Florida, and Oklahoma. At the time of this writing, Tennessee seems to be on the cusp of becoming the tenth state to enact universal school choice. As we have cheered these expansions, we have not hesitated to chide Democratic legislators in Illinois and Republican legislators in Texas for backtracking on school choice.

 
Protect The 1st has also been active nationwide in protecting equal treatment for religious education.

• We most recently supported a pending lawsuit between Catholic schools and the State of Colorado over access to the state’s early childhood education program. The Colorado Department of Early Childhood launched the program aiming to provide universal preschool access before kindergarten. But the department then imposed restrictions categorically forbidding all Archdiocesan Catholic preschools from participating – excluding over 1,500 children at 36 preschools. Three times in the past six years, the U.S. Supreme Court has affirmed that the government cannot exclude some people from public benefits because of their religious beliefs. Protect The 1st will continue to remind the courts that religious discrimination is a violation of the First Amendment.

RELIGIOUS LIBERTY

​With a strong liberty-minded majority on the U.S. Supreme Court, Protect The 1st is seeing a renewal and strengthening of speech and religious rights. Other courts are doing their part to preserve and expand religious liberty throughout the country.

• In Colorado, a Catholic healthcare clinic is suing the state for restricting the ability of physicians to even discuss progesterone, a method of reversing a chemical abortion for women who are having second thoughts. This case is essentially the inverse of legislative proposals in red states that would permit civil actions against anyone informing women about abortion options in other states, a speech restriction we also oppose. In this Colorado case, the Bella Health clinic in late 2023 was granted a preliminary injunction barring implementation of the law and allowing the clinic to continue its work.

 

• An opposite speech case in New York regards Sisters of Life, a Catholic community of nuns who offer holistic care for women in crisis. Unlike Bella Health, their infraction is a refusal to be forced what to discuss. The Sisters of Life have sued to overturn and enjoin a new state law that allows the state to demand “data and information” from any center that offers services to pregnant women that does not offer abortion services or referrals. A settlement was reached with the state stipulating that it will not take any enforcement action of any kind against Sisters of Life.

 

• In Maryland, Protect The 1st vocally supports parents who are suing the Montgomery County Board of Education after the board changed its policy to deny parents their religious liberty right to opt their children out of instruction with extreme, ideological takes on family life and sex education topics. The parents’ lawsuit alleges violations of Maryland state law, the Free Exercise Clause of the First Amendment, and of substantive due process guaranteed by the Fourteenth Amendment.

 

• In June, Protect The 1st applauded the U.S. Supreme Court’s decision in Groff v. Dejoy, in which the Court unanimously defended the religious liberty of an evangelical Christian man who claimed the Postal Service denied his request to refrain from working on Sunday. In the ruling, the Court threw out the prevailing standard that businesses shouldn’t be required to suffer more than “de minimus” harm from a religious accommodation. Instead, the Court held that a business or other employer must accommodate a religious practice unless the accommodation would create a “hardship” that is “substantial in the overall context of an employer’s business.” This new standard significantly widens the scope for religious liberty.   

 
For such an active year, it was appropriate that in November came the celebration of the 30th birthday of the Religious Freedom Restoration Act (RFRA). RFRA was a landmark bill signed into federal law by President Bill Clinton that ensures religious freedom is protected from government overreach. RFRA has since become a cornerstone of religious freedom, putting statutory muscle behind the promise of the free exercise of religion in the First Amendment. RFRA has since served as a guiding light for the courts in their deliberations on religious freedom. Protect The 1st’s litigation and advocacy rest firmly on the strong basis of this law.

PROTECT THE 1st IN COURT

​2023 was a productive year for Protect The 1st in court as well. We filed five amicus briefs on a wide range of issues, two of which centered on religious liberty.

• In January, we joined with the Jewish Coalition for Religious Liberty to file a brief before the Ninth Circuit Court of Appeals supporting the Apache Stronghold in its Oak Flat Case. The controversy in question goes back to 2014, when a rider tucked into the NDAA authorized the creation of a copper mine in Oak Flat, a swath of national forest land in central Arizona sacred to the Apache people. If approved, the land would be transformed into a crater as long as the Washington Mall and as deep as two Washington Monuments.
  
  ​In 2021, the non-profit Apache Stronghold sued to prevent the Forest Service from transferring the land. The Ninth Circuit heard the case en banc in March 2023 – and we’re still awaiting for the court’s decision. PT1st believes it is important to defend the religious liberty of minority faiths and religious communities like the Apache Stronghold for the simple reason that the religious liberties of all rise or fall together.

 
In March, we filed a certiorari petition before the Supreme Court in the case of Keister v. Bell. The University of Alabama – through an agreement with the City of Tuscaloosa – shut down a street preacher, Rodney Keister, who preached on city-owned streets near the school.

• Parks, sidewalks, and other public spaces are historically understood as places where such activities are permitted, yet the Eleventh Circuit found against Keister. The court used a multi-factor balancing test, holding that even though the sidewalk in question was owned by the city, maintenance of the sidewalk by the university necessarily entailed the university’s intent toward expressive activity. Protect The 1st will look for fresh opportunities to persuade the U.S. Supreme Court to resolve a widening circuit split on the issue of what constitutes a public forum.

 
We expect more positive developments for the year ahead. We are hopeful Gov. Greg Abbott will succeed in persuading the Texas Legislature to add the Lone Star State to the honor roll of states that have now embraced widespread school choice. We hope to see a positive resolution for the Apache Stronghold in Oak Flat. And we are optimistic that courts will fall in line with the reasoning of the U.S. Supreme Court on granting equal treatment to religious education.
 
Protect The 1st also looks forward to courts applying the new standard set forth in Groff v. Dejoy. We are determined to give greater care to the claims of minority religions, which are often without the resources to fight for their rights like larger religions and denominations.
 
Protect The 1st will continue to advocate for the fullest protection of the speech, religious expression and other freedoms guaranteed by the First Amendment.