The U.S. Supreme Court, in a 6-3 decision today, upheld the right of parents who wish to send their children to religious schools to enjoy the same access to state-sponsored tuition assistance programs as parents sending their children to secular schools.
The majority opinion in Carson v. Makin followed the reasoning that appeared in an amicus brief filed by the Protect The First Foundation – that the First Amendment’s Free-Exercise Clause requires governments to respect the liberty of parents to make the best choice to educate their children consistent with their faith.
The case arose from the refusal by the State of Maine to allow parents who qualify for tuition assistance programs to use their funds to send their children to religious schools that dare to impart religious teachings and have religious activities. Maine insisted on this standard even though these schools met all state education certification standards.
Maine defended its position by claiming it did not discriminate against religious schools, only schools with “sectarian” religious teachings and practices. The Court saw through Maine’s illogical standard – that a school could be Catholic in name but could not hold a Bible class or administer communion.
The majority also agreed that Maine’s subsidy for attendance at religious schools would not violate the Establishment of Religion Clause. Rather, the offense to the Constitution was a state regulator in Augusta, Maine, reviewing schools’ curriculum and deciding if a school is sufficiently irreligious or too religious. Writing for the majority, Chief Justice John Roberts concluded: “Maine’s ‘nonsectarian’ requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment.”
The majority opinion referred to two precedents in which similar principles were applied. In Trinity Lutheran Church of Columbia, Inc., v. Comer (2017), the Court struck down a Missouri program that excluded religious organizations from a grant for nonprofits that installed cushioning playground surfaces made from recycled rubber tires.
More akin to Makin is Espinoza v. Montana Dep’t of Revenue (2020) concerning a state program that provided tax credits to donors who sponsored scholarships for private school tuition.
In today’s opinion, the majority declared that the “unremarkable” principles of Trinity Lutheran and Espinoza mean that a state “need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
With a solid win for religious liberty in Carson v. Makin, we can expect future cases will explore the freedom of publicly funded religious charter schools to include religious instruction.
San Jose School District Disqualifies Fellowship of Christian Athletes, Approves Satanic Temple Club Established to Mock Their Christian Beliefs
The Fellowship of Christian Athletes and the Becket legal team are vowing to appeal a ruling last week by Federal Judge Haywood Gilliam for upholding the cancellation of Fellowship of Christian Athletes clubs by the San Jose School District in California.
The cancellation began when a teacher at Pioneer High School in that district posted a statement on his classroom whiteboard objecting to the recognition of the Fellowship of Christian Athletes (FCA) as a school club. The FCA is open to all and asks its members to treat everyone “with love, dignity and respect.” It reserves its leadership posts for student athletes who lead the groups in prayer, worship, and religious instruction. They must adhere to its Statement of Faith, which upholds traditional Christian tenets such as the Holy Trinity and the Divinity of Christ. The FCA also holds a traditional view on marriage.
The Pioneer High teacher in this case announced that FCA’s views are “bullshit” and should be barred from San Jose’s public high schools. Student reporters from the school newspaper and others are alleged to have disrupted an FCA meeting, snapping pictures in the faces of the FCA members. A Pioneer teacher in attendance told Espiritu that this was “intimidating” and left FCA students visibly “embarrassed, harassed and scared.”
District officials responded by denying benefits to FCA clubs, called for on-campus protests for FCA and gave official recognition to a new student club – the Satanic Temple Club – formed with the specific and announced purpose of mocking FCA’s beliefs and Christianity.
The banning of the Fellowship of Christian Athletes is the first and only time the district has ever “derecognized” a student club for asking its leaders to embrace the club’s views.
Last week, Judge Haywood Gilliam of the Northern District of California held that the action of the San Jose School District did not preclude religious speech but rather prevented acts of discrimination. He refused to issue a preliminary injunction of the club’s banishment. Judge Gilliam recognized no contradiction in applying this standard to the FCA, while allowing other clubs – the Latino Male Mentor Group, the Girl’s Circle, and the National Honor Society – to set membership criteria by sex, GPA, and other standards.
The Ninth Circuit should grant the request for a preliminary injunction because the district’s actions violate statute and the Constitution.
First, the district ruling violates the Equal Access Act – a federal statute prohibiting school districts from derecognizing clubs “on the basis of the religious, political, philosophical, or other content of the[ir] speech.” Second, it violates the Free Exercise Clause of the First Amendment, banning an after-school group on the basis of its religion. And third, it violates the Free Speech Clause of the First Amendment, punishing a viewpoint on marriage held by millions of adherents of Christianity, Islam, and Judaism (and not, by the way, related to the purpose of this student forum, which is centered around Bible-reading and prayer).
Becket is appealing Judge Gilliam’s refusal to set a preliminary injunction of the clubs’ cancellation to the Ninth Circuit Court of Appeals. If the Ninth Circuit does not act, the Fellowship of Christian Athletes faces another year or more of an ongoing violation of their First Amendment and statutory rights.
In the wake of Georgetown Law’s Ilya Shapiro debacle, the whole university seems to be setting itself up for endless controversy, recrimination, and lawsuits over free speech. This is apparent in the Georgetown University’s Institutional Diversity, Equity & Affirmative Action (IDEAA) harassment report that spells out policies that now apply to all professors.
Kudos to Eugene Volokh for obtaining a copy of this policy and quoting from it. This policy on “harassment” and prohibited speech now extends to any speech that expresses views that sufficiently offend “reasonable” students “in the impacted individual’s position” based on their identity group membership.
This policy prohibits offensive speech that relates not just to race or sex, but also to “age … disability, family responsibilities, gender identity and expression, genetic information, marital status, national origin and accent, personal appearance, political affiliation, pregnancy … religion … sexual orientation, source of income, veteran’s status or other factors prohibited by federal and/or District of Columbia law.”
These prohibitions extend to the expression of views in op-eds, conferences, scholarship, television appearances and the like.
Volokh raises many examples of language, some hypothetical and some real, that could run afoul of Georgetown’s speech code. One example: A Georgetown law professor opined that there is “only one political party in this country, the Democrats. The other group is a combination of a cult and an insurrection-supporting crime syndicate.”
Under the standards enunciated by Georgetown, this would denigrate Republicans based on their “political affiliation” (which, Volokh notes, means party affiliation under D.C. law). Many Republicans would be offended by this statement. But should law professors be fired for personal venting on politics? Yet don’t be surprised that the next time a Georgetown professor sounds off on Republicans if some group, perhaps the Georgetown College Republicans, will find a lawyer willing to hoist that professor with his own petard.
Volokh concludes: “The important thing here, I think, is just how much speech is now in peril, going forward, for Georgetown professors generally (especially the ones who lack tenure, but even the tenured ones.)”
In a 5-4 vote, the U.S. Supreme Court today made the right call in temporarily blocking a Texas social media censorship law that would have stripped big platforms of any ability to moderate their content.
Industry representatives argued that if Texas HB20 was not stayed, they would be compelled by law to run Russian propaganda on Ukraine, ISIS calls for violence, neo-Nazi posts denying or supporting the Holocaust, and posts encouraging children to take up risky behaviors.
It is important to remember that some speech actually is dangerous. To force companies to post such speech would gut their First Amendment right to moderate their sites. We are hopeful that when a federal judge examines the merits of this law, it will be found to be overweening if not Orwellian.
Social media companies, however, need to acknowledge how they helped create the Texas legislative blunderbuss. Content moderation that sometimes lumps in the merely controversial with the dangerous has understandably outraged many. Given the size of Twitter, Facebook and one or two other big social media networks, to be deposted is to effectively be censored. To be deplatformed can amount to being put out of business and silenced for good.
This is our dilemma. The big social media companies have a First Amendment right not to associate with offensive and dangerous speech. But the practical effect of some of their decisions is to effectively censor a range of viewpoints.
The way to resolve this dilemma is in the approach suggested by the Platform Accountability and Consumer Transparency Act, sponsored by Sens. Brian Schatz (D-HI) and John Thune (R-SD). The PACT Act would require social media companies to give consumers clear standards for the removal of posts in exchange for the liability protection they receive under Section 230 of the Communications Decency Act. Platforms would give users due process, allowing them to appeal for quick resolution of complaints about being moderated out of the discussion.
Texas legislators should reconsider their approach. In fact, regulations are best pursued at the federal level, not on a state-by-state level. Different social media laws in every state would turn the online world into an unreadable and unmanageable patchwork.
Erik Jaffe, policy director of Protect The 1st, drawing on his experience with more than 100 cases before the U.S. Supreme Court, reacts to the leaking of the draft opinion overturning Roe v. Wade, and gives a preview of major cases in coming weeks. He discusses:
Listen to Erik Jaffe, one of the nation’s leading constitutional lawyers, in this interview on the Pacific Research Institute’s Next Round podcast.
Shield of Strength v. United States Department of Defense
“Love bears all things, believes all things, hopes all things, endures all things ...”
1 Corinthians 13
“love is the voice under all silences, the hope which has no opposite in fear; the strength so strong mere force is feebleness: the truth more first than sun more last than star.”
being to timelessness as it’s to time
The sentiment expressed by the Apostle Paul in the New Testament testifies to the power of love, as does the snippet from an e.e. cummings poem. Under the standards set by the Department of Defense (DoD) and its trademark office, the first quote is forbidden because it comes from a religious source, the second is permitted because it is ostensibly secular.
Protect The 1st is joining an amicus brief – drafted by Prof. Eugene Volokh at the UCLA First Amendment Amicus Brief Clinic, together with his students Elizabeth Anastasi, Aaron Boudaie, and Anastasia Thatcher – filed before the U.S. District Court for the Eastern District of Texas to require the government to resolve discrepancies in its treatment of religious speech. The case involves a company, Shields of Strength (SoS), that sells facsimiles of dog tags with the logos of U.S. military services on one side, and inspirational quotes on the other. Because service logos are used, Shields of Strength must obtain permission from the DoD trademark office.
That office routinely approves hundreds of such trademark uses for parades, team uniforms and athletic wear, student-run organizations, and products from jewelry brands to license plates. But DoD policy denies trademark licenses for “any purpose intended to promote ideological movements, sociopolitical change, religious beliefs (including non-belief), specific interpretations of morality, or legislative/statutory change.”
This excludes the use of service trademarks when the back of an SoS dog tag includes a Bible verse. Thus, DoD’s inherently vague standards give it the ability to withhold its approval for the use of its service trademarks where religious speech is concerned. But how can the government assert a justification for denying permission to SoS and its dog tags? No one mistakes the use of trademarked logos on various products – from team jerseys to earrings – to be government speech. Rather, the trademark program is clearly a limited public forum that, by the admission of the services, works with hundreds of companies around the world. Consumers want no more than to honor the services in their own way.
How then can these commercial dog tags be considered government speech? SoS dog tags are not worn instead of military dog tags. They do not identify the wearer. They do not contain government opinion. These dog tags are meant to be worn on the bodies of private people, not displayed to the public like a government-printed license plate. These dog tags are expressive works in which the wearer communicates both patriotism and religiosity.
Courts have held that when the free exercise of religion is at risk, the strictest scrutiny must apply. For all these reasons, DoD’s refusal to let SoS use these marks discriminates against this company and its customers solely due to their religiosity – and thus violates the Free Exercise Clause of the First Amendment.
Oakwood Adventist Academy vs. Alabama High School Athletic Association
The Oakwood Academy Mustangs of Huntsville, Alabama, had fought their way this year to the semi-finals with a chance at winning the state title. This was, in fact, the winningest season for the basketball team of Oakwood Adventist Academy, the nation’s oldest Black Seventh-day Adventist school.
As Seventh Day Adventists, however, the Mustangs must observe the Sabbath that begins on sundown Friday to sundown Saturday. When the schedule for the semi-finals was released, the Mustangs were slated to play at 4:30 on a Saturday afternoon – agonizingly close to sundown, but still daylight … and still the Sabbath.
Then the Mustangs caught a break. Other teams agreed to switch out their times with other teams, avoiding scheduling a game during the Sabbath. This seemed to be a good, all-around solution to everyone except the Alabama High School Athletic Association (AHSAA), which refused to accept a switch that was acceptable to all teams.
The Becket Fund for Religious Freedom is now representing Oakwood Adventist Academy before the U.S. District Court for the Middle District of Alabama, seeking a permanent injunction against the association discriminating against religious requests.
“It’s bad enough that AHSAA would intentionally exclude a religious school for honoring the Fourth Commandment,” said Eric Rassbach, senior counsel and vice president of the Becket Fund. “But it’s worse when the exclusion is entirely unnecessary — like most Americans faced with this issue, the schools had worked out a simple, common-sense solution. But the bureaucrats said no. The First Amendment demands much more.”
Supreme Court Overturns Campaign Loan Repayment Limit
The Supreme Court today in a 6-3 decision overturned Section 304 of the Bipartisan Campaign Reform Act, declaring in a majority opinion that the law impermissibly “burdens core political speech.”
This case, provoked by a deliberate violation of the regulation by Sen. Ted Cruz, concerned whether a candidate for federal office could be repaid after the election for borrowed funds of more than $250,000.
The majority opinion cited our Protect The First Foundation’s amicus brief, which provided evidence that Section 304 inhibits candidates’ speech. As we explained in our brief: “The loan repayment limit … burdens challengers by deterring them from raising money from one of the few sources that may be available to them early in their campaigns: a personal loan.”
Justice Elena Kagan in her dissent claimed that the law prevents “political contributions that will line a candidates’ own pockets.” Writing for the majority, Chief Justice John Roberts responded that “we are talking about repayment of a loan, not a gift.”
Once again, the Court has recognized that many restrictions on campaign spending are restrictions on speech. Protect The 1st is pleased to have contributed to this significant First Amendment victory.
Protect The 1st applauds the decision of the American Civil Liberties Union to support Elon Musk’s promise to readmit former President Donald Trump to Twitter.
ACLU executive director Anthony D. Romero issued a forthright statement:
“You’d be hard-pressed to find a more steadfast opponent of Trump and his policies than the ACLU, but Elon Musk’s decision to re-platform President Trump is the right call. When a handful of individuals possess so much power over the most important forums for political speech, they should exercise that power with restraint. If Trump violates the platform rules again, Twitter should first employ lesser penalties like removing the offending post — rather than banning a political figure.
“Like it or not, President Trump is one of the most important political figures in this country, and the public has a strong interest in hearing his speech. Indeed, some of Trump’s most offensive tweets ended up being critical evidence in lawsuits filed against him and his administration. And we should know — we filed over 400 legal actions against him.”
Protect The 1st upholds the First Amendment right of Twitter to manage its content. However, when most of the nation’s public discourse is conducted on a handful of platforms, we cannot ignore the impact of the de-platforming of a major national figure. Whatever one believes about the former president, the time has come for liberals and conservatives to once again trust that the long, arduous process of working out major issues through unfettered speech ultimately delivers the best results.
To believe otherwise is to disbelieve in democracy.
The Ninth Circuit Court of Appeals in San Francisco denied an en banc hearing for plaintiffs in Slockish v. U.S. Federal Highway Administration. The decision denies the opportunity to consider the merits of a religious liberty case filed by an American religious minority.
Hereditary chiefs Wilbur Slockish and Johnny Jackson, spiritual leaders of the Klickitat and Cascade Tribes of the Yakama Nation in Eastern Oregon, had sued the government after it had bulldozed their ancestral burial grounds. These lands had been used by the Yakima for centuries for vision quests, water ceremonies, to gather food and medicine, and bury their dead. The Federal Highway Administration razed these burial grounds, destroyed a sacred stone altar, and removed safe access to the site. Protect The First Foundation and the Harvard Law School Religious Freedom Clinic joined a coalition of religious liberty groups to brief the court on the facts and principles of this case.
In this denial, the Ninth Circuit missed an opportunity to stand up not just for the religious rights of Native Americans, but also to recognize the protections of the Religious Freedom Restoration Act and the Free Exercise Clause of the U.S. Constitution. At stake are not just the rights of the Yakama tribes, but also the rights of Jews, Catholics and Protestants, Sikhs, Muslims, and Americans of all religions.
Fortunately, there is another opportunity for the court to take a stand for religious liberty.
Protect The 1st is hopeful that the Ninth Circuit will take a more favorable stance for the Apache tribes of Arizona, whose sacred lands at Oak Flat in the Tonto National Forest are being transferred by the government to a foreign mining company.
Sens. Dianne Feinstein, Tim Scott Lead Bipartisan Protest of Proposed Education Department Rules on Charter Schools
Educating children in the fundamentals is essential to the full expression of the First Amendment. As a Texas statesman said, “a cultivated mind is the guardian genius of democracy.”
For 3.4 million American students, charter schools provide a quality alternative to failing public schools. For minority and low-income communities, charter schools are a lifeline for children to escape from intergenerational poverty to success. A Harvard study on changes in student performance on the National Assessment of Educational Progress from 2005 through 2017 reported that black eighth graders at charter schools were six months ahead of their district public school peers.
Why then, is the U.S. Department of Education proposing rules that would alter the purpose of the Charter Schools Programs (CSP), designed by Congress to support the creation of new charter schools, replicate the highest-quality schools, and share information about best practices?
If the federal agency gets its way, that lifeline might be shortened, or cut altogether. An initiative from the department – described by the National Alliance for Public Charter Schools as “a sneak attack on charter schools” – would empower federal reviewers to ignore state and local decisions to authorize new public schools.
During the Covid pandemic and the academic year of 2020-2021, 240,000 new students enrolled in charter schools, representing a seven percent growth rate from the previous year. The CSP-enabled growth is now endangered by a plethora of proposed federal rules that would choke off one of the bright spots in American education.
“Make no mistake,” declares the Alliance, “this is a back-door attempt to prevent new charter schools from opening – contrary to the very purpose of the CSP.”
On Thursday, a bipartisan group of U.S. Senators, led by Sens. Dianne Feinstein (D-CA), and Tim Scott, (R-SC), fired off a letter of protest to Education Secretary Miguel Cardona.
“We are concerned that these requirements would make it difficult, if not impossible, for new public charter schools start-ups, and for high-performing public charter schools seeking to replicate or expand, to access CSP funding,” wrote the senators. “In addition, the proposed rule would add significant burdens and time to an already complex application process, with little time for technical assistance, particularly for the upcoming 2022 grant cycle.”
Other signatories include: Senators Cory Booker, (D-NJ), Michael Bennet, (D-CO), Richard Burr (R-NC), Bill Cassidy (R-LA), and Marco Rubio (R-FL).
The House Judiciary Committee recently passed – on a unanimous and bipartisan basis – the Protect Reporters from Exploitive State Spying (PRESS) Act. This measure would establish a federal statutory privilege that would shield journalists from being compelled to reveal confidential sources and would protect those sources from federal law enforcement subpoenas.
This is popular legislation – sure to pass by a wide margin should it come to the House floor. Most Members of Congress, like the voters who elected them, understand that the ability of journalists to grant confidentiality to whistleblowers and other sources enables the exposure of hidden abuses by the powerful. This practice, well in place since the Pentagon Papers, refreshes democracy, stimulating reform, debate and improvement.
This practice sounds great to most everyone, until it is one’s own ox that gets gored by someone whose politics you dislike.
Consider Project Veritas. When we criticized the FBI for its lengthy, intrusive violation of Project Veritas’ notes, emails, calls, and confiscation of their digital devices, some of our liberal friends raised an eyebrow. Project Veritas exists at the intersection of conservative activism and journalism, prompting liberal targets into admitting things in private they’d never say in public.
Many liberals continue to argue Project Veritas should be investigated in the case of the missing diary of President Biden’s daughter, though the group insists it reported the diary to the authorities.
Now, it is the turn of many conservatives to demand a strenuous investigation into the leaking of Justice Samuel Alito’s draft opinion overturning Roe v. Wade. For the record, we agree that the Marshal of the Supreme Court should investigate and expose the person who leaked this opinion to Politico. That was a vile act, one that undermines the Court’s professional culture of civility. The leaker deserves to be punished.
The danger in this case is that the Court’s urgent need to find the leaker, and the anger of many powerful conservatives, could persuade the FBI it has carte blanche to secretly examine phone logs and old emails traded by journalists Josh Gerstein and Alexander Ward with their source.
Using such a subpoena might expose a wrongdoer working in the Supreme Court. It would also have the effect of degrading the ability of journalists in the future to protect their sources.
Admittedly, there is a thin and uncomfortable line between trying to catch a leaker on the administrative side, while protecting that same person when he or she becomes a source on the journalistic side. It is also a difficult line to walk when you despise the politics of the side that benefits from the leak. But it is a line that must be respected for the sake of us all, on all sides of every debate.
“Our liberty depends on the freedom of the press,” Thomas Jefferson said, “and that cannot be limited without being lost.”
The surest way to ensure we don’t have to continually face these temptations to intrude into the freedom of journalists is to pass the PRESS Act.
The City of Boston was kicked to the curb by the U.S. Supreme Court for its effort to deny a group, Camp Constitution, the ability to use a public flagpole to raise its flag sporting a Latin Cross, while allowing 284 other flag-raising events from groups with a variety of messages. As Justice Neil Gorsuch noted: “Not a single member of the Court seeks to defend Boston’s view that a municipal policy allowing all groups to fly their flags, secular and religious alike, would offend the Establishment Clause.”
Justice Stephen Breyer, writing for the majority, wrote: “[T]he city’s lack of meaningful involvement in the selection of flags or the crafting of their messages leads us to classify the flag raisings as private, not government, speech ....” He concluded that since it was not government speech, the Camp Constitution’s flag could not violate the Establishment Clause. Excluding it was a violation of the Free Speech Clause.
Justice Breyer added:
“When a government does not speak for itself, it may not exclude speech based on ‘religious viewpoint’; doing so ‘constitutes impermissible viewpoint discrimination.’”
Justice Brett Kavanaugh, in his concurring opinion, found:
“As this Court has repeatedly made clear, however, a government does not violate the Establishment Clause merely because it treats religious persons, organizations, and speech equally with secular persons, organizations, and speech in public programs, benefits, facilities, and the like … On the contrary, a government violates the Constitution when (as here) it excludes religious persons, organizations, or speech because of religion …”
The majority noted that precedent held that trademarks were not government speech simply because the Patent and Trademark Office “registered all manner of marks and normally did not consider their viewpoint … Boston’s come-one-come-all attitude—except, that is, for Camp Constitution’s religious flag—is similar.”
Boston had argued that the display of a flag with a Christian motif would constitute government speech endorsing one religion over another. Justice Samuel Alito made a number of points that corresponded with the amicus brief of the Protect The First Foundation. He responded that “speech by a private individual or group cannot constitute government speech if the government does not attempt to control the message.” Justice Alito extended that reasoning to raise the specter of censorship in an expansive definition of “government speech.”
Concerned about the blurring of lines between government and private speech, Justice Alito suggested a new test under which two conditions are needed to satisfy ‘government’ speech protected from a challenge based on the Free Speech Clause. First, it must show that the challenged activity is purposeful communication of a governmentally determined message by a person empowered to speak for the government. Second, the government must establish it did not rely on a means that abridges the speech of private persons:
“Under the resulting view, government speech occurs if—but only if—a government purposefully expresses a message of its own through persons authorized to speak on its behalf, and in doing so, does not rely on a means that abridges private speech …
“So government speech in the literal sense is not exempt from First Amendment attack if it uses a means that restricts private expression in a way that ‘abridges’ the freedom of speech, as is the case with compelled speech. Were it otherwise, virtually every government action that regulates private speech would, paradoxically, qualify as government speech unregulated by the First Amendment. Naked censorship of a speaker based on viewpoint, for example, might well constitute ‘expression’ in the thin sense that it conveys the government’s disapproval of the speaker’s message. But plainly that kind of action cannot fall beyond the reach of the First Amendment.”
Justice Alito warned that even if the government is conveying its own message, however, it still might find ways to abridge private speech.
The facts of this case are local and, on the surface, trivial. But today’s opinions suggested that Shurtleff v. Boston will become a precedent resolving the tension between the Establishment Clause forbidding an official religion and the Free Speech Clause. It is likely to be cited for creating a more generous precedent for religious speech than the 1971 Lemon case, which the late Justice Antonin Scalia likened to a “ghoul in a late-night horror movie.”
Shurtleff is sure to guide many future cases in the protection of religious speech.
As Elon Musk noisily wrestles with the complexities of bringing a wide venue for speech on Twitter, former President Barack Obama – whose administration was largely hands-off when it came to regulating Silicon Valley – is calling on the federal government and social media companies to do more to stem the spread of misinformation.
In a recent keynote to a Stanford University symposium, Obama discussed myriad ways misinformation threatens democracies. He centered his vision for reform around Section 230, which currently grants social media companies liability protection in court for speech generated by users.
Obama praised the internet for connecting people around the world, making economies more efficient, and even for playing a key role in his election. “I might never have been elected president if it hadn’t been for websites like, and I’m dating myself, MySpace, MeetUp and Facebook that allowed an army of young volunteers to organize, raise money, spread our message,” he said. “That’s what elected me. But like all advances in technology, this progress has had unintended consequences that sometimes come at a price. And in this case, we see that our new information ecosystem is turbocharging some of humanity’s worst impulses.”
Obama’s prescription to help fix the problem did not include attempts to get rid of all offensive or inflammatory content on the web. “That is a straw man,” said Obama. “We’d be wrong to try. Freedom of speech is at the heart of every democratic society, (and) in America those protections are enshrined in the First Amendment to our Constitution. There’s a reason it came first in the Bill of Rights.
“I’m pretty close to a First Amendment absolutist. I believe that in most instances the answer to bad speech is good speech. I believe that the free, robust, sometimes antagonistic exchange of ideas produces better outcomes and a healthier society.”
The former president said tech companies need to be more aggressive in self-policing and more transparent in their operations, while the federal government now has a responsibility to take additional steps.
“And while I’m not convinced that wholesale repeal of Section 230 is the answer, it is clear that tech companies have changed dramatically over the last 20 years,” said Obama. “And we need to consider reforms to Section 230 to account for those changes, including whether platforms should be required to have a higher standard of care, when it comes to advertising on their site.”
As for precedents, the former president cited a “long history of regulating new technologies in the name of public safety,” including cars, pharmaceuticals, and food products.
“This may seem like an odd example and forgive me, you vegans out there, but if a meat packing company has a proprietary technique to keep our hot dogs fresh and clean, they don’t have to reveal to the world what that technique is. They do have to tell the meat inspector.”
The president endorsed the bipartisan Platform Accountability and Transparency Act, or PATA, which would require social media companies to report their internal, proprietary operations to independent researchers – the meat inspectors in the president’s metaphor – who would examine this data and release findings on platforms’ impacts on the public.
In an earlier iteration of this blog, we erroneously reported that the president had endorsed the almost identically named Platform Accountability and Consumer Transparency Act. Apologies aside, we still believe the president’s ideas would best be expressed by passage of the PACT Act — sponsored by Sens. Brian Schatz (D-HI) and John Thune (R-SD). The PACT Act would require social media companies that enjoy liability protection to have clear and easy-to-understand standards for the removal of offensive posts. Platforms would also have to afford users due process, allowing them to appeal for quick resolution of complaints.
The key to the PACT Act isn’t government inspection of data and algorithms. It is balance – transparency for all users and the right to contest a deleted post or deplatformed website. That’s the better way to make a hotdog.
Harvard University canceled its invitation to a feminist philosopher who was prepared to talk on British romanticism because she had, in her other writings, expressed disagreement with the tenets of transgender ideology that prevail in academia.
Dr. Devin Buckley had asserted that sex is immutable and that the inclusion of transgender women in women’s sports violates “fair play on sports teams.” Dr. Buckley also questioned the growing practice of putting transgendered females in women’s prisons. For such atrocities, she was cancelled by Erin Saladin, coordinator of the Harvard English Department, who “found at least one piece of her writing online that explicitly denies the possibility of trans identity.”
Whatever one’s views on the psychological and social reality of transgenderism, the cancelling of scholars like Dr. Buckley – or the exclusion of celebrity writer J.K. Rowling from Harry Potter events – will not settle any questions or win over hearts and minds. The views in the Harvard English Department notwithstanding, the statements of Buckley and Rowling are hardly outside of the mainstream of public opinion.
“I have never written anything hateful towards any transgender individual,” Dr. Buckley told National Review. “I’ve been shunned and ostracized by people at my graduate program. I’ve had people walk down the street refusing to acknowledge that I exist in ritualized shunning and social cancellation.”
The same First Amendment that protects Dr. Buckley’s speech also protects Harvard’s right to disinvite her. But a robust culture of speech rests not just on legal protections, but also on a willingness to engage those with whom we disagree. Harvard is poorer for its unwillingness to engage contrary views.
As for Dr. Buckley, she says, “For my part, I’d rather be damned with the Romantics and Plato than go to woke heaven with Erin and the Harvard faculty.”
Whether one agrees with her sentiment or not, there’s no denying that the Harvard educational experience is diminished when people with her views are denied the opportunity to share them.
Protect The 1st is optimistic that Elon Musk will bring greater transparency, openness and respect for free speech to Twitter. The platform’s content moderation process was too opaque to generate much trust. Twitter should build trust in its political neutrality, neither favoring content from the right or from the left. Musk promises to do that.
Knotty issues remain, however. Will Musk give space to absolutely all views? What if someone tweets that one ethnic or religious group or another is spreading Covid-19? Where do we draw the line between a controversial idea, a conspiracy theory, and an assertion that could promote violence? Or will Musk have no content moderation, with maximum trust placed in the intelligence and goodwill of the users?
The change Musk promises is welcome. But the protection of free speech in democracy’s town hall shouldn’t rely on the judgment of one man, no matter how prolific, much less on a small and largely unseen group of content moderators. Protect The 1st continues to support the PACT Act, a bipartisan Senate bill that would establish transparency in content moderation decisions and give the cancelled some right of redress in exchange for the liability protections all social media platforms enjoy.
We predict that as Musk manages these contentious issues, he will be forced more than once to adjust. But his is a brave undertaking and one we hope Musk succeeds at as brilliantly as he has done with electric cars and space travel.
Coach Kennedy v. Bremerton School DistricT
Joe Kennedy – the “praying coach” fired by the Bremerton, Washington, school district for praying on the 50-yard-line after games were concluded – enjoyed mostly friendly questioning in oral argument before the U.S. Supreme Court today.
Justices Samuel Alito, Neil Gorsuch, Clarence Thomas and Brett Kavanaugh all framed most of their questions in terms sympathetic to Coach Kennedy. Given the record of Justice Amy Coney Barrett of support for religious expression, some long-time observers of the Court predicted today’s hearing suggests an eventual 6-3 ruling in favor of upholding the coach’s prayer as a legitimate and private expression of faith by a government employee.
The school district had argued that athletes could feel pressure to participate in prayers with a coach who decides who plays and who does not. “We’re worried that the students will feel he gets to put me into a football game, or not,” said Justice Elena Kagan to Kennedy’s lawyer. But the school district’s contention that Coach Kennedy made a spectacle of his prayer was knocked down by Justice Brett Kavanaugh, who questioned the practicality of drawing a line around private prayer that must not draw anyone’s attention.
The assertion by the school district’s lawyers that Kennedy’s actions amounted to government speech, however, fell flattest of all.
The tenor of the Justices’ questioning echoed the brief filed by Protect the 1st, which offered many examples of how far the First Amendment’s prohibition of “no establishment of religion” can go with a government employee before violating that same amendment’s promise to protect the free exercise of religion.
In the brief of our legal arm, the Protect the First Foundation, we noted that government employees, including teachers, often wear religious garments and undertake short, devotional expressions of faith at work without violating policy. Native Americans wear eagle feathers, Christians show up to work on Ash Wednesday with a smudge on their foreheads, Muslim women wear headscarves, Jewish and Muslim men wear prayer caps. A teacher who is Christian might say grace before lunch. A Muslim teacher might pray during a break between classes.
All these actions are routine expressions of private faith that do not in any way constitute government speech. Taken literally, a strict effort to block out all such religious characteristics of government employees would quickly turn oppressive.
Based on today’s oral argument, Protect The 1st is optimistic the court will see that expressions of faith by public employees deserve protection.
Is speech that produces emotional injury a form of stalking? Or is speech – private speech about deeply personal matters – protected by the Constitution? The latter is the case Protect the First Foundation made before the District of Columbia Court of Appeals in a highly charged case about accusations of adultery in the workplace.
It all began when a Washington, D.C., executive, received an email from a distraught husband accusing him of having had an affair with his wife when she worked at his firm as an intern. Messages were sent by email and Facebook to the executive’s network of coworkers, family and friends.
Public shaming in the digital age can be robust, vivid, instantaneous and comprehensive. But is it cause for a civil protection order?
Protect the First Foundation is asking the District of Columbia’s highest court to revisit the implications of a judgment upholding a D.C. stalking statute that defines it as a crime to “directly or indirectly … in person or by any means, on two or more occasions” to communicate “about another individual” where the speaker “should have known” that such communications would cause “significant mental suffering or distress.”
The D.C. law does include exceptions for constitutionally protected speech, such as protests. Thus, the depraved people who inflict emotional distress on the relatives of fallen soldiers at funerals – or neo-Nazis who parade through neighborhoods of elderly Holocaust victims and their descendants – are exercising protected speech. But people who talk trash about someone are not?
If rigorously enforced, the District of Columbia might have to slap a civil order on most of its adult citizens. For those who continue to defy the law, perhaps their internment could define a new use for RFK Stadium.
Fortunately, precedent points to a different conclusion. In our brief, we noted that the Supreme Court made clear in Engquist v. Oregon Dep’t Agric (2008) that government cannot “generally prohibit or punish, in its capacity as sovereign, speech on the grounds that it does not touch upon matters of public concern.”
Well established First Amendment exceptions remain for libel, threats, or obscenity. But an aggrieved husband has First Amendment rights courts are bound to respect at least as much as neo-Nazis and funeral disrupters. Jonathan Yardley, former book critic of The Washington Post, defined the kernel of the issue: “The trouble with free speech is that it insists on living up to its name.”
City of Austin, Texas v. Reagan National Advertising
Even in this digital age, signage remains prominent as a form of speech. In City of Austin, Texas v. Reagan National Advertising, the question before the U.S. Supreme Court was whether a city ordinance forbidding “off-premises” signs was an infringement of the First Amendment.
Protect The First Foundation made the case in an amicus brief that Austin’s prohibition of messages that advertise “a business, person, activity, goods, products, or services not located where the sign was installed” is inherently a regulation of content.
A Supreme Court 5-4 majority today disagreed, narrowing the scope of First Amendment protection for billboards and similar signs. The Court’s reasoning seems straightforward. Writing for the majority, Justice Sonia Sotomayor declared that the distinction in location is “agnostic as to content” and is therefore constitutional.
“Rather, the City’s provisions distinguish based on location: A given sign is treated differently based solely on whether it is located on the same premises as the thing being discussed or not.”
The majority reasons that if a regulation is based on a sufficiently general or broad category, it is not actually content based.
Justice Clarence Thomas, with Justices Gorsuch and Barrett, wrote an eloquent dissent:
“Under Reed, Austin’s off-premises restriction is content based. It discriminates against certain signs based on the message they convey--e.g., whether they promote an on- or off-site event, activity, or service.”
Justice Thomas wrote that the majority ignored the Reed precedent’s “rule for content- based restrictions and replaces it with an incoherent and malleable standard.” Justice Thomas then offered this vivid example:
“Take, for instance, a sign outside a Catholic bookstore. If the sign says, ‘Visit the Holy Land,’ it is likely an off-premises sign because it conveys a message directing people elsewhere (unless the name of the bookstore is ‘Holy Land Books’). But if the sign instead says, ‘Buy More Books,’ it is likely a permissible on-premises sign (unless the sign also contains the address of another bookstore across town). Finally, suppose the sign says, ‘Go to Confession.’ After examining the sign’s message, an official would need to inquire whether a priest ever hears confessions at that location. If one does, the sign could convey a permissible ‘on-premises’ message. If not, the sign conveys an impermissible off-premises message. Because enforcing the sign code in any of these instances ‘requires [Austin] officials to determine whether a sign’ conveys a particular message, the sign code is content based under Reed …
“The majority concedes that ‘[t]he message on the sign matters’ when applying Austin’s sign code. Ante, at 8. That concession should end the inquiry under Reed.”
Justice Thomas found that the majority transforms the clear precedent of “content based regulation” into an “opaque and malleable ‘term of art’ that “turns the concept of content neutrality into a vehicle for the implementation of individual judges’ policy preferences.” He warned the acceptance of Austin’s “content-based distinction” of off-premises speech restriction “plainly lends itself to “suppress[ing] disfavored speech.”
Protect The 1st and the Protect The First Foundation will remain alert to any use of today’s opinion by jurisdictions to invent novel infringements on speech.
As we approach Earth Day, Protect The 1st Senior Policy Advisor and former Congressman Rick Boucher (D-VA) describes the two national treasures at risk in the plan to destroy the sacred lands of Oak Flat. One is the incomparable beauty and wildlife habitat of 2,400 acres of the Tonto National Forest. The other is the constitutional right to the free exercise of religion enjoyed by all Americans.
By all accounts, Mike Pence gave a spirited talk this week at the University of Virginia. He elicited cheers and a little protest. In these days of polarization, the peaceful appearance of a national, partisan figure on a college campus counts as a “win” for free speech.
At another university, this high-profile event might not have happened. When news broke that Pence had been invited to speak to a conservative student group, student Elisabeth Bass of The Cavalier demanded the former vice president be banned from campus as a threat to LGBTQ students. An editorial board piece for that student newspaper likened Pence’s promise to “take a stand for America’s founding” to the white supremacists who rioted in Charlottesville in 2017.
The university administration held firm and rightly allowed the event to go forward. Not incidentally, their decision protected the rights of students to dissent and protest Pence as well. It is UVA’s principled stand for free speech that prompted the Foundation for Individual Rights in Education (FIRE) to give the university a “green light” rating. FIRE’s rating puts the university near the top of schools that notably respect free speech.
Not every university is as firm as UVA. Administrators at other institutions often waver, allowing the silencing of speakers left, right and center.
Despite Pence’s successful appearance, institutions founded on a love of discovery and discourse are still in danger of becoming silos of censorship and shaming. What’s lost is the opportunity for all sides to learn from each other. Let’s hope more students and faculty realize the surefire way to lose a debate is to ban one.
The First Amendment guarantees our free exercise of religion. The Religious Freedom Restoration Act forbids the government from “substantially burdening a person’s exercise of religion.”
So what does a substantial burden look like?
If Congress and the Ninth Circuit Court of Appeals fail to protect the sacred religious lands of the Apache at Oak Flat in the Tonto National Forest in Arizona, a foreign mining company will transform this site into a crater 1.8 miles long and as deep as two Washington Monuments. Try holding a worship service, a coming-of-age ceremony, or a gathering of ceremonial and medicinal herbs at the bottom of such a hole surrounded by almost two miles of empty space.
Here are some great tools for visualizing a substantial burden (hat tip to BJC).
Rick Boucher: Necessary for the Protection of Civil Liberties
On Wednesday, the House Judiciary Committee unanimously advanced the Protect Reporters from Exploitive State Spying, or PRESS Act, sponsored by Rep. Jamie Raskin (D-MD), setting it up for likely passage on the House floor.
Prior versions of this bill, introduced by Protect The 1st senior advisor, Rep. Rick Boucher (D-VA), and then-Rep. Mike Pence (R-IN), passed the House in 2007 and 2009 with more than 400 votes. It has been promoted in years past, not only by the current Committee Chair and Ranking Member, but also by now-Senate Majority Leader Chuck Schumer (D-NY) and Sen. Lindsey Graham (R-SC).
Today’s rare and spirited agreement between committee members of both parties reflects their awareness of a serious concern. In recent years, there have been many media accounts of investigations by overweening prosecutors amounting to fishing expeditions into the notes, files, records, cellphones, laptops, and computers of reporters. Journalists from CNN to Fox News have been targeted under Democratic and Republican administrations. There have been suspicions of political motives in some of these investigations.
The PRESS Act would grant journalists in legal proceedings arising under federal law a privilege to refrain from revealing confidential news sources, with reasonable exclusions.
“The revelations of investigative journalists and the protection of their sources irritate the powerful,” said Rick Boucher, advisor to Protect The 1st who sponsored the bill when he served on the House Judiciary Committee. “But journalistic inquiry is absolutely necessary for citizens to hold our government accountable in the protection of our civil liberties.”
Boucher called on the House to schedule a vote and for past sponsors in the Senate to take up the measure as well.
H.R. 1884 – the Save Oak Flat Act introduced by Rep. Raúl Grijalva of Arizona – now has 100 co-sponsors with Thursday’s addition of Rep. David Price (D-NC).
This bill repeals the authority of the federal government to swap almost 2,500 acres in Arizona’s Tonto National Forest and give it to a foreign mining company. The swap, if allowed to go forward, includes the Oak Flat area that has been used as sacred ceremonial grounds by the Apache for centuries. If that happens, this centerpiece of the Apache religion would be transformed into a copper mine that would leave a hole as long as the Washington Mall and two Washington Monuments deep.
Rep. Grijalva’s bill, which would stop the land swap and the mine, continues to gain support, including the backing of Rep. Tom Cole (R-OK).
On the judicial side, there is also new reason for hope. As the U.S. Court of Appeals for the Ninth Circuit weighs its decision on the fate of these lands, that court must now consider a binding precedent that is only days old. In Ramirez v. Collier, the Supreme Court in an 8-1 opinion protected religious expression from a burden in a context that is far narrower than the one in the Oak Flat case.
Support for the Apache is building because recognition is growing that at Oak Flat the religious rights of all Americans are at stake.
Americans of all races and backgrounds are showing a dramatic shift in their support for school choice. It appears a large majority of Americans have reached a consensus in favor of school choice and policies that favor parental rights. This is a result from a new poll from the American Federation for Children and Invest in Education.
Tommy Schultz, CEO of the American Federation for Children, said “these poll numbers are stunning … a staggering majority.”
“The past two years have exposed to the world what many in the parental choice movement have known for decades,” Schultz said. “No single educational environment is right for every child.”
The survey was conducted by OnMessage, Inc., in telephone interviews between February 14 and February 17, surveying 1,000 voters likely to vote in the upcoming general election.
This poll revealed deeper currents in the school choice debate.
Three-quarters of respondents agreed that “parents should be in charge of decisions regarding their child’s education” and that “it is not fair that only wealthy parents truly get to decide where their child goes to school.” Majorities of Republicans (86 percent), Democrats (65 percent), and independents (74 percent) agreed with these characterizations. Among demographic groups, support for school choice includes 83 percent of Blacks and 77 percent of Hispanics.
The survey asked voters whether they believe that “parents should have the right to remove their children from a failing public school and enroll them in a school that is succeeding academically.” Eighty-three percent agreed, including three-quarters of Democrats. Nearly 90 percent of Black voters agreed, as did 85 percent of Hispanics.
The results of this survey match a poll by RealClear Opinion Research, which found that almost three-quarters of Americans say they support school choice.
No doubt, these results are partly due to some school districts stubbornly clinging to school closures long after it was medically necessary. But such a wide national shift must reflect something broader and deeper: The pandemic and online learning has given parents a good look into not only how children are being taught, but also into what they are being taught – and not taught at all.
(Hat tip to Alexandra DeSanctis)