Prosecutors in Asheville, North Carolina, are insisting on pressing forward with the prosecution of two journalists for daring to document a police sweep of a homeless encampment.
 
Matilda Bliss and Veronica Coit were arrested and charged for trespassing on Christmas night, 2021. Their crime? They stood on a rise above the scene in a city park after the park’s 10 p.m. closing time. By the admission of all, the journalists could not have seen the eviction, must less filmed it, from a public sidewalk or lower down in the park. They were where they needed to be to document this story.
 
On April 19, Bliss and Coit were finally convicted of trespassing in a bench trial. They are now exercising their rights to appeal their case before a jury. The U.S. Press Freedom Tracker, which maintains data on press freedom violations, reveals that this is only the fourth such trial in the United States in the last five years. The Tracker has no record of a journalist being sentenced to jail or probation for trespassing since it began documenting the arrests of journalists in 2017.
 
Concerned about the chilling effect such prosecutions have on a free press, Protect The 1st joined with a coalition of civil liberties organizations, in a letter organized by the Freedom of the Press Foundation, to protest these prosecutions to the Asheville city attorney, the police chief, and the Buncombe County district attorney. The letter states that “a government interested in transparency should not want to set a precedent that journalists cannot cover newsworthy events, in plain sight and on public land, at night.
 
“The news does not keep regular business hours and citizens are entitled to know what police are doing at any hour.”
 
The actions of local officials and statements by police, caught on body-cam footage, show no love lost for The Asheville Blade. It is easy to see why. The Blade advertises itself as “a leftist local news co-op focusing on hard-hitting journalism, in-depth investigation and sharp views from our city.” The Blade’s critical eye may make it the bête noir of city and law enforcement officials. But having a point of view doesn’t make this news outlet any less of a journalistic enterprise than the National Review or The Nation.
 
“The continued prosecution of the two Asheville Blade reporters sends a message that authorities can cherry-pick who qualifies as a journalist based on personal preference,” the letter concludes.
 
Protect The 1st will follow the case and report on the outcome of the appeal.

Rick Boucher and Bob Goodlatte, former Members of Congress and now Senior Policy Advisors to Protect The 1st, detail the school choice revolution sweeping the country. States are adopting universal school choice – protecting the 1st Amendment right of parents to choose the most appropriate school for their children.

​Democracy is often loud. It is often impassioned against prevailing opinion, be it that of a legislative majority, an ideologically conformist college campus, or an overwhelmingly red or blue community. And yes, it is often rude.
 
While both legislatures and campuses have a right to enforce a degree of civility, they are both spaces where the maximum latitude to criticize is essential to a functioning democracy. Why is this so hard for many on the right, as well as the left, to understand?
 
Protect The 1st has had a lot to say of late about the instances of speakers – mostly conservatives – being silenced on university campuses, mostly by progressive students and faculty. But conservative Republican legislators, in states where they have commanding majorities, are willing to demonstrate that they too can be ready to cancel people with contrary views.
 
So it was with the expulsion of Rep. Zooey Zephyr, the transgender Democrat elected to the Montana Legislature in a district that includes the college town of Missoula. The Montana House debated a measure to ban “gender-affirming care” for minors. The bill later passed by a wide margin and was signed into law by that state’s governor.
 
Proponents of this legislation argued that in a society that doesn’t allow minors to smoke, buy a lottery ticket, or gamble, it makes sense to restrict changes they can make to their bodies. Rep. Zephyr responded that such restrictions would worsen the high rate of suicide among transgender teens. It is on that basis, she said, that those who vote for the bill would have “blood on your hands.”
 
Such invective is in keeping with the 1964 New York Times v. Sullivan opinion in which the U.S. Supreme Court found that “debate on public issues should be uninhibited, robust, and wide-open.” But the Montana Legislature saw it differently. By 68-32 last week, it held that Rep. Zephyr had violated House rules and banned her from the House chamber for the remainder of this legislative year. She will now have to cast her votes remotely. This legislator will be absent from the discussions, deliberations, and horse-trading that occurs as Montana prepares to pass a housing bill and the state budget. “There will be 11,000 Montanans whose representative is missing,” Rep. Zephyr said, calling her expulsion a “nail in the coffin of democracy.”
 
The U.S Supreme Court took a similar view in Bond v. Floyd in 1966, in which the Court, ruling on First Amendment grounds, reinstated civil rights activist Julian Bond to the Georgia House of Representatives after the House clerk refused to seat him. What was the reason Bond was not seated in accordance with the will of his constituents? He had voiced his opposition to the Vietnam War and the draft.
 
“The manifest function of the First Amendment in a representative government requires that legislators be given the widest latitude to express their views on issues of policy,” the Court declared in 1966. The majority opinion cited the observation of James Madison that the British Parliament had assumed the power to regulate the qualifications of both the electors and the elected. As a result, the Parliament freely adjusted its qualifications to make sure any debate was always rigged for the majority.
 
Legislative leaders today should avoid rigging the rules against views that defy the majority. They should get used to hearing issues framed in a way they find offensive. They might also want to recognize how self-defeating these heavy-handed tactics can be.
 
Expulsion valorizes the expelled. It gets them interviews on national media. It raises money from donors across the country. And the expelled always come back.
 
Julian Bond returned to the Georgia Legislature, where he went on to serve in the House and Senate for twenty years. The two Tennessee state legislators expelled by that state’s House were reinstated with much fanfare. Zoe Zephyr, an obscure politician from a college town, is now a national celebrity.
 
We will thus predict the re-election of Rep. Zephyr. Agree or disagree with her on transgender issues, pushback from the courts and voters is a sign of health. As Rep. Zephyr says, “You cannot kill democracy that easily.”

An op-ed penned by two Harvard professors announces the creation of an academic freedom council to actively protect free speech on that campus. In an op-ed in The Boston Globe, this document declares its purpose as boldly as if it had been nailed to a church door.
 
Celebrity author and psychologist Steven Pinker and Bertha Madras of Harvard begin their piece by detailing the sorry state of affairs in academia – viral videos of professors being mobbed, cursed, heckled into silence, and sometimes assaulted. They quote the Foundation for Individual Rights and Expression that of the 877 attempts to punish scholars across the United States for expression protected by the First Amendment, there were 114 incidents of censorship and 156 firings.
 
“More,” they note, “than during the McCarthy era.”
 
After detailing the value of open inquiry – apparently, remedial education for some in higher education – Pinker and Madras describe the corruption of ideas caused by censorship. Even when the academic consensus is almost undoubtedly correct, many will still distrust the truth because it “comes out of a clique that brooks no dissent.”
 
Pinker and Madras also describe the incentives that allow those intent on intimidation to take over a campus that once housed the first printing press in British North America.
 
“A cadre of activists may find meaning and purpose in their cause and be willing to stop at nothing to prosecute it, while a larger number may disagree but feel they have other things to do with their time than push back,” they write. “The activists command an expanding arsenal of asymmetric warfare, including the ability to disrupt events, the power to muster physical or electronic mobs on social media, and a willingness to smear their targets with crippling accusations of racism, sexism, or transphobia in a society that rightly abhors them.”
 
And don’t expect an “exploding bureaucracy for policing harassment and discrimination” to be helpful when their professional interests “are not necessarily aligned with the production and transmission of knowledge.” Things are made even worse, they write, when “right-wing muscle” attempts to offset “left-wing muscle” by passing laws to stipulate the content of higher education.
 
To correct this imbalance, Pinker and Madras announced the creation of a Council on Academic Freedom at Harvard.
 
“When an individual is threatened or slandered for a scholarly opinion, which can be emotionally devastating, we will lend our personal and professional support,” they write. “When activists are shouting into an administrator’s ear, we will speak calmly but vigorously into the other one, which will require them to take the reasoned rather than the easy way out.”
 
As of this writing, over one hundred Harvard faculty and staff have signed on to the council. With such leadership at one of the premier universities of the nation, we would not be surprised to see councils on academic freedom pop up on campuses around the country.

​Last month, North Dakota and West Virginia passed state equivalents of the federal Religious Freedom Restoration Act (RFRA). With these two additions, one-half of U.S. states now have such laws that fulfill the First Amendment’s guarantee of the free exercise of religion.
 
The original RFRA was enacted by Congress in 1993 in response to the Supreme Court’s decision in Employment Division v. Smith, a case that jettisoned the strong “compelling interest” standard in free exercise of religion cases in favor of a test that allowed the government to burden religion as long as the burden was imposed in a way that was neutral and generally applicable. Since its enactment, RFRA has faced numerous legal challenges and undergone significant interpretations by the courts – some of which expanded its reach, and others which narrowed it, such as the Ninth Circuit’s decision in Navajo Nation v. U.S. Forest Service.
 
In recent years, states have passed their own versions of RFRA to clarify the legal protections afforded to religious beliefs and practices within their borders. With North Dakota and West Virginia joining the list of states with RFRA laws, twenty-five states now have their own form of RFRA. State courts have adopted this standard in nine additional states.
 
Supporters of RFRA laws argue that they are essential to protecting religious liberty, a fundamental human right. They contend that government policies and regulations should not be allowed to unduly burden the exercise of religious beliefs and practices, and that RFRA laws provide a necessary check on government overreach.
 
Opponents of RFRA laws see it as justifying discrimination. Some states are aggressively acting against the free expression of religion.
 
Who knows? Perhaps disobedience to the law of the land may well one day soon prompt the U.S. Supreme Court to clarify matters by holding that the “compelling interest” standard that protects the observance of other constitutional rights also protects the free exercise of religion. Until then, state RFRAs and the federal RFRA will have to fill the void left by Smith’s misinterpretation of the Free Exercise Clause.

​The U.S. Supreme Court is set to hear a pair of cases in which local officials blocked criticism from constituents on social media sites. At stake is the question of what constitutes a public forum that must be open to critics and their pesky questions.
 
In one case, two members of a local school board in San Diego County used Facebook and Twitter accounts to communicate with constituents, inviting them to board meetings, and discussing issues. When two parents kept posting repetitive and lengthy comments critical of the two school board members, the officials blocked them. The parents sued on First Amendment grounds. After all, if these sites were being used as public fora, didn’t they have a right to be heard?
 
A three-judge panel of the Ninth Circuit Court of Appeals considered their argument and ruled in favor of the plaintiff parents.
 
“When state actors enter that virtual world and invoke their government status to create a forum for such expression, the First Amendment enters with them,” wrote Judge Marsha S. Berzon.
 
Now the Supreme Court is set to review that matter and a split between the lower courts in a second case in which the constituent plaintiff lost. In that case, a Michigan man set his Facebook account, stocked full of personal posts, as a page to receive public and unlimited followers. He listed himself on his page as a “public official,” and included some communications about his official business after he later became the city manager of Port Huron, Michigan. But his page had begun, and largely remained, a personal one. When the inevitable constituent-critic emerged, the city manager blocked him. That constituent sued, arguing on First Amendment grounds that he should not be excluded from the page.
 
That lawsuit failed before the Sixth Circuit Court of Appeals, where the ruling was for the defendant city manager.
 
These two cases raise a host of interesting questions. Among them:
 
Does communicating with constituents on official business convert a personal social media account into an official platform open to all?
 
Do repetitive comments from constituents represent spam? If so, is spam speech or can it be blocked? After all, one cannot show up to a city council meeting, seize a microphone, and say the same thing over and over for hours.
 
When a Facebook page is begun for purely personal reasons – showing family picnics, vacations, and birthdays, as in the Michigan case – and later includes some official business, does it become a public forum or does it remain personal?
 
These cases echo a more prominent social media user with a lot more constituents. In 2019, a federal appeals court in New York held that President Trump’s Twitter account was a public forum on which he could not exclude anyone, including his most vociferous critics. That ruling became moot after Trump lost the election. But the question stuck.
 
It had prompted Justice Clarence Thomas to muse about how to apply First Amendment doctrine to social media’s subtle and often invisible power to block, delist and downgrade. These cases will offer the first glimmers of the Court’s evolving doctrine on the limits and responsibilities of social media platforms under the First Amendment.
 
Protect The 1st will report on the oral arguments in these two cases, O’Connor-Ratcliff v. Garnier and Lindke v. Freed, in the fall.

Protect The 1st Policy Director Erik Jaffe on a panel on censorship Tuesday makes a provocative case that almost all government speech constitutes interference with the marketplace of ideas (1:06 mark).

​Colorado adopted a first-of-its-kind law that would restrict the ability of physicians to discuss a treatment for women who are having second thoughts about a chemically induced abortion. The new law restricts progesterone treatment, a popular method to reverse a chemical abortion, and forbids physicians from even informing them that such a treatment exists.
 
This law is the mirror image of legislative proposals in red states that would allow individuals to take civil legal action with high punitive awards against anyone who helps or informs women about obtaining abortions in other states. Whether the intent is pro-abortion or anti-abortion, or the state red or blue, the deployment of penalties, fines, and lawsuits to try to shut up physicians and friends violates the First Amendment.
 
For this good reason, Protect The 1st opposes any such laws that violate the First Amendment by micromanaging physicians’ speech. Objections to the regulation of speech is the prime reason why Colorado Catholic clinic Bella Health and Wellness is going to court to overturn the Colorado law. Bella Health is suing the state because it feels "religiously compelled” to offer this treatment.
 
Here's the backstory: chemical abortions occur when pregnant women take two pills — mifepristone and misoprostol — back-to-back over the course of up to 48 hours. The first, mifepristone, blocks the body’s production of progesterone, a naturally-occurring hormone that is essential to the maintenance of a healthy pregnancy. The second, misoprostol, causes cramping and bleeding to empty a woman’s uterus, which is described as “very similar to an early miscarriage.”
 
While the use of mifepristone and misoprostol is one of the most common means used to terminate a pregnancy, some women reconsider their choice after taking the first pill. To counteract its effects, many healthcare providers offer progesterone treatment, which can sometimes work by providing enough progesterone to maintain the pregnancy.
 
According to Becket, the law firm that represents Bella Health, the Colorado law targets pro-life clinics like Bella by making it illegal to offer women progesterone. Bella can offer the hormone to women in any other circumstance but not if the purpose is to reverse the effects of an abortion pill. If Bella continues to offer and advertise progesterone for women who seek to reverse an abortion, the healthcare provider faces up to $20,000 per violation and the loss of the medical licenses of its providers.
 
The case of Bella Health will appear before Judge Daniel D. Domenico, who has placed a temporary restraining order on enforcement of the law.
 
Any law that seeks to gag healthcare providers and punish them for observing their deeply held convictions – whether pro- or anti-abortion – violates the First Amendment. Not only do doctors lose their freedoms when government dictates what they can or cannot say, such laws also deprive patients of their right to choose the best treatment plan for themselves.

​The victory of Dominion Voting Systems in securing a $787.5 million settlement against Fox News over its false claims about the election demonstrates that even high-profile plaintiffs can prevail under today’s libel law, despite the higher bar a “public figure” must clear to win.
 
There has been some concern over whether the distinction between public and private figures has been so blurred by the courts that the prevailing NYT v. Sullivan standard may reach too far beyond its original application, making it too difficult for severely libeled private parties to obtain redress. But Dominion certainly qualified as the corporate equivalent of a “public figure.” And yet it managed, in the court of public opinion at least, to clear that high bar showing “actual malice” on the part of the defendant, Fox News.
 
Tuesday’s settlement – even though it was not a verdict – shows that it is still possible to win under Sullivan. What about the impact of this settlement on a free press? Will this lawsuit have a chilling effect? Probably not. The statement put out by Fox acknowledged the facts of the case, and those facts were egregious.
 
Overall, the outcome appears to be the functioning of a legal principle that worked as intended.

​We’ve joined with more than a dozen civil liberties organizations in an open letter warning Congress about the dangers of the Restrict Act, which would give the Secretary of Commerce sweeping powers over virtually all information technology. Some versions of the bill would criminalize speech about “national elections.”
 
“The scope of the act is enormous,” the coalition letter reads, “and may allow the administrative state to issue regulations affecting telecommunications, cryptocurrencies, press freedoms, and the use of and access to the Internet itself.”
 
The bill would create criminal penalties that carry up to 20 years in prison and up to $1 million in fines, as well as civil asset forfeitures.
 
If enacted, the Restrict Act would necessitate and likely authorize even more domestic spying on Americans than currently occurs, while making every American a potential suspect for communicating the “wrong” idea on the “wrong” platform or equipment.
 
The Restrict Act would turn the Commerce Secretary into the nation’s telecommunications and speech czar. It is loaded with flagrant violations of the First Amendment.

“When a district school is failing or unsafe, school choice provides an exit option previously foreclosed to most families,” said Lindsey Burke of the Heritage Foundation. “But school choice is far more than an escape hatch; it is the mechanism that will create a rising tide that will lift all boats.”
 
Burke followed up on a comment made earlier by Rep. Warren Davidson (R-OH) that money should follow students rather than schools. “Pell Grant recipients aren’t assigned to particular colleges,” she said. “Food stamp recipients aren’t assigned to the grocery store closest to their home. Yet in K-12 education, students are assigned to the district public school closest to where their parents can afford to buy a home, even if that school is a poor fit for that child.”
 
Asking why the future of children should be limited to their ZIP code, Rep. Burgess Owen (R-UT) said that school choice is “a civil rights issue.” He noted that 75 percent of African-American boys in California in 2017 could not pass standardized reading and writing tests. He said they are being denied the right to “read, write, think or dream.”
 
Rep. Owens added that “no one in this room would send their child to such [an underperforming] school,” but there is a lack empathy for families that currently have no other choice. And those that are trapped are, he said, predominately “Black, Hispanic, those who cannot defend themselves.”
 
Many persuasive witnesses spoke. But the show stealer was Denisha Allen of the American Federation for Children.
 
Growing up in a distressed neighborhood in Jacksonville, Florida, Allen said: “I failed third grade – twice – because I couldn’t read. I felt so insecure. I just knew I was stupid. I was regularly humiliated by my peers because I was two years older than my classmates. Teachers sighed when I walked through the door. Unsurprisingly, I hated school.”
 
“To me, school was not the window to opportunity but an obligation,” she said. “I thought school was a place I had to go so my biological mother would not go to jail – because that had happened before ... It seemed that my life path would follow in the same path as many of my family members, with dropping out or worse.”
 
In the summer of her sixth-grade year, Allen moved in with her godmother, who applied for a Florida tax-credit scholarship to enroll in a small private church school.
 
“I didn’t know my life was about to change. Every day at my new school, my teachers greeted me with a smile. I felt loved and seen,” she said.
 
“Because I didn’t read on grade level, teachers would meet with me one-on-one to help me. They saw potential in me that I never had. My confidence grew. They didn’t view me as a chore but as a child of God – as a student capable of learning.
 
“I went from making Ds and Fs, believing I would become a teen mom and a high-school dropout, to making As and Bs, becoming the first in my family to graduate from high school, then undergraduate college, and grad school – earning a master’s degree and going on to work full-time in this field to ensure that as many other students as possible get this incredible opportunity.
 
“I wasn’t a failure. The public school system had failed me. Imagine all the students today who are like I once was – the ones who are trapped in poor-performing schools, who don’t read on grade level, are destined to drop out of school, become a teen parent, or spend the rest of their life behind bars.
 
“Imagine telling those beautiful faces that there was a feasible alternative, that their liberation can come in the form of education freedom – but only if their state leaders prioritized students' needs above the systems that had failed them.
 
“Yet in many states, the opportunity for America’s students, including its 7.7 million Black public school students, to access these potentially life-changing learning options remains out of reach,” Allen said. “The sad reality is students in many states will never access this type of life-changing opportunity unless Congress acts. There are many proposals to provide more options to parents – like the Education Choice for Children Act – it would allow parents to have education freedom now more than ever.”
 
Watch the whole hearing here, with Denisha Allen at the 40-minute mark.

In Tuesday’s oral argument in Groff v. DeJoy, Justices of the U.S. Supreme Court struggled to define a proper test for workplace rules that balance respect for employees’ religious liberty with their employers’ need for efficiency.
 
This case revolves around former postal worker Gerald Groff, an evangelical Christian in Pennsylvania who alleged that his civil rights were violated when the Postal Service denied his right to refrain from working on Sunday.
 
A central question emerged: when an employee wants to take time off due to religious beliefs, is the prevailing standard of hardship that must experienced by employers too expansive – too generous – to the employer?
 
Another question: How can a court measure the degree of hardship an employer must suffer from an employee’s regular absence on a day of religious observance before it becomes actionable?
 
Justice Neil Gorsuch said there is “common ground” that a hardship standard that is de minimis (or trivial) “can’t be the test, in isolation at least, because Congress doesn’t pass civil rights legislation to have de minimis effect, right? We don’t think of the civil rights laws as trifling, which is the definition of de minimis.”
 
Justice Samuel Alito criticized the precedent created by the Supreme Court’s 1977 decision in Trans World Airlines, Inc., v. Hardison, which held that employers can fire workers who refuse to work on a seventh day sabbath, as “an exercise in constitutional avoidance.” Solicitor General Elizabeth Prelogar said that under Hardison, the lower courts have interpreted that decision in a way that properly respects the rights of minority religions.
 
Justice Alito responded sharply: “[W]e have amicus briefs here by many representatives of many minority religions, Muslims, Hindus, Orthodox Jews, Seventh Day Adventists, and they all say that is just not true, and that Hardison has violated their right to religious liberty.”
 
The quest for “common ground” was repeated by several Justices, a ray of hope that the Court may craft a new doctrine with more latitude for the religious. Based on Tuesday’s oral arguments, it would be foolhardy to predict how the Justices will come down on this one. Protect The 1st can only direct attention to Justice Thurgood Marshall’s dissent in Hardison:
 
“The ultimate tragedy is that despite Congress’ best efforts, one of this Nation’s pillars of strength – our hospitality to religious diversity – has been seriously eroded. All Americans will be a little poorer until today’s decision is erased.” 

​In a system in which the government provides for public libraries, the selection and weeding of available books will never be free of politics. In the scenic Texas Hill country, the commissioners of Llano County replaced its library board in 2021 and asked the newbies to do a content review of all books in its three branches.
 
Twelve books, all for children and young adults, were selected for removal. They include Caste: The Origins of Our Discontent by Isabell Wilkerson, They Called Themselves the K.K.K.: The Birth of an American Terrorist Group, by Susan Campbell Bartoletti, Being Jazz: My Life as a (Transgender) Teen by Jazz Jennings, and Gary the Goose Has Gas on the Loose.
 
When these books were removed, seven residents sued claiming that their rights under the First and Fourteenth Amendment were violated. On March 30, federal Judge Robert Pitman in a preliminary injunction ordered the Llano County Library System to return the books and not remove any more. He indicated that the removals and close content regulation would not likely pass constitutional muster.
 
The commission responded by debating the closure of Llano County’s entire library system.
 
Reasonable objections to ideological extremes can sometimes veer into political frenzy. Llano County, a popular place in deer hunting season, has yet to make it on the map as a hotbed of 1619 activism and Frankfurt School cultural Marxism. As a native Texan named Laura Bush said, “I have found that the most valuable thing in my wallet is my library card.” To be fair, some books are too obscene or deranged to belong in a public library. It would be a shame, however, to pulverize a center of learning out of pique at a judge and a moral panic over a flatulent goose.

​In Santa Fe, Democratic Gov. Michelle Lujan Grisham and her fellow Democrats in the New Mexico Legislature took a commendable step to improve a law they championed to make sure it now observes the religious freedom of physicians.
 
That law is the Elizabeth Whitefield End-of-Life Options Act, which went into effect in 2021. The law required doctors who objected to administering fatal drugs to a patient to refer them to a physician who would. The Christian Medical & Dental Associations filed suit earlier this year, objecting that this law would force dissenting physicians and private physician organizations to be complicit in a practice they find offensive to their beliefs.
 
Here's where Santa Fe has a lot to teach people on both sides of the aisle in Washington, D.C. Instead of seeking a maximalist victory, sponsors of the original bill and the governor agreed that there were problems with the law. They proactively supported a measure to revise the law to observe the First Amendment rights of physicians and their private organizations. Lawsuit dropped. The rights of all respected.

​Protect The 1st affirms that communities have a right to protect children from public performances that are sexually explicit. But such laws need to be focused on extreme content and obscene behavior, or else they run the risk of outlawing legal and even innocuous content.
 
A new law in Tennessee would have outlawed explicit performances, limiting “adult cabaret performances” on public property to shield them from the view of children. This would have included strippers, exotic dancers, and male or female impersonators.
 
Such a law could, conceivably, outlaw a public performance of the original Cabaret musical, with its depictions of the goings-on in the KitKat Klub in Berlin, or Rosalind becoming a boy called Ganymede in Shakespeare’s As You Like It. Could the law outlaw an outdoor movie showing of Jack Lemmon and Tony Curtis in Some Like It Hot, or Tootsie, or Mrs. Doubtfire? Jonathan Winters playing Maud Fricket? How about anything British and funny, from Benny Hill to Monty Python? And what about dancing ladies who come to town to advertise that the circus is coming?
 
U.S. District Court Judge Thomas L. Parker clearly sees the problem of over-broadness in this law. He recently issued an order delaying the enforcement of the order for two weeks while he considers if the ban is unconstitutional.
 
Judge Parker wrote that “given the Defendants’ lack of a clear answer to the Statute’s purpose considering current state obscenity laws, along with the Parties’ present filings on the Statute’s legislative history, the Court finds that Plaintiff has made a likely case for subjecting the Statute to strict scrutiny here.”
 
We’ll keep an eye out for Judge Parker’s decision.

​Last year, Sens. Ron Wyden and Martin Heinrich revealed that the Department of Homeland Security had tracked millions of wire money transfers by Americans. Now, thanks to a Freedom of Information Act request from WIRED, we’ve learned of a legal tool used by another part of DHS, Immigration and Customs Enforcement (ICE), to extract data from elementary schools, news organizations, and abortion clinics.
 
Called 1509 customs summonses, these requests are authorized by law to be used in criminal investigations about illegal imports or unpaid customs duties.
 
WIRED examined ICE’s subpoena tracking database and found agents issued more than 170,00 customs summonses from the beginning of 2016 through August 2022. Congress granted this power to ICE to allow it to efficiently follow up on customs issues without having to wait for a warrant from a judge.
 
Among the targets of ICE customs summonses are a youth soccer league, surveillance video from a major abortion provider in Illinois, student records from an elementary school in Georgia, health records from a state university’s student health service, data from three boards of elections or election departments, and data from a Lutheran organization that aids refugees.
 
WIRED reports: “In at least two instances, agents at ICE used the custom summons to pressure news organizations to reveal information about their sources.” In 2017, ICE had also illegally used a custom summons to try to force Twitter to reveal the owner of an anonymous account.
 
ICE spokesmen told WIRED that there were reasonable explanations for these requests, including investigations into the spread of child sex abuse material. But many civil liberties observers are skeptical of any claim made by federal agencies. ACLU’s Nathan Freed Wessler said that without access to the underlying subpoenas, there is no way to tell if ICE had abused its authority.
 
This is a clear case where Congressional oversight is mandatory. The House and Senate Judiciary Committees must investigate the rationales for these customs summonses – especially those that were aimed at news organizations. And they should take the next step by passing the PRESS Act to protect journalists from being compelled by federal prosecutors to reveal their sources.

​A new lawsuit in California challenges a state policy that bars religious parents and schools from using special education funding to serve children with disabilities. Jewish parents and schools filed Loffman v. California Department of Education, claiming the California policy violates their 1st and 14th Amendment rights by prohibiting federal and state special education funding for disabled children at religious private schools while allowing it for secular private schools.
 
This funding originates with the Individuals with Disabilities Education Act, a federal law ensuring that all children with disabilities in America can receive a free appropriate public education that meets their needs. However, the California legislature allows only secular private schools to participate in this benefits program and has categorically excluded religious schools from participation.
 
Eric Rassbach, Vice President and Senior Counsel at the Becket Fund, which represents the plaintiffs, said: “It takes a special kind of chutzpah to deny Jewish kids with disabilities equal access to special education benefits.” In a Twitter thread, Rassbach pointed out that a majority of Californians would like to see funding for students with disabilities opened up to non-secular schools.
 
The suit cites Espinoza v. Montana Department of Revenue, a landmark case that struck down a similar restriction. In that case, the U.S. Supreme Court held that restrictions in government programs for no other reason than the fact that they are religious are “odious to our Constitution and cannot stand.”
 
In Carson v. Makin, the Court struck down a Maine law that, like the California law, would allow private secular schools and families to access public funding but exclude religious schools and families. Carson builds on a long line of cases holding that religious people cannot be excluded from government benefits programs solely on the basis of their religion.
 
PT1st supported the plaintiffs in Carson v. Makin, in which the Court ruled 6-3 to uphold the rights of religious families. We wrote: “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.” Should Loffman make it before the U.S. Supreme Court, it seems likely that the Court will strike down the California restriction.
 
We supports the plaintiffs and the Becket fund 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. The California legislature, by restricting resources, forces parents with a disabled child to violate their religious conscience, leaving them with inadequate options for their child’s education. We look forward to further developments in this case.

​In recent years, religious organizations at public colleges and universities have had to struggle for the right to exist on campus. The Christian organization InterVarsity Christian Fellowship had to go to court against Wayne State University after having its status as an official student club revoked in 2017.

When federal Judge Robert H. Cleland ruled on this case in 2021, he wrote that other student groups were allowed to restrict their leadership based on sex, gender identity, political partisanship, ideology, creed, ethnicity, GPA or even attractiveness. However, the judge wrote, the “small group of Christians … were denied [student organization] benefits because they require their Christian leaders to be … Christian.”

Judge Cleland ruled in favor of InterVarsity Fellowship.

As many jurists have noted, freedom of association is essential to freedom of speech. An organization must have integrity in the sense of being whole in its beliefs. The Roman Catholic Church would no longer exist if it were forced to hire atheists as priests. The Freedom from Religion Foundation would crumble if forced to accept Roman Catholic priests into its leadership. Discrimination that would be illegal – and immoral – in a business is necessary for a religious, political, or ideological organization to exist and function.

Despite InterVarsity’s victory, many religious organizations – by no means only Christian in nature – have struggled to find acceptance as recognized clubs on campuses where virtually every other kind of organization is readily accepted. To protect religious rights and diversity, the Trump Administration issued a rule in November 2020 called the “Free Inquiry Rule” that protects the rights of religious student groups at public colleges and universities. Religious student organizations could no longer be defunded because they have leadership policies that conflict with campus anti-discrimination rules.

One Muslim leader, Ismail Royer, praised the Trump-era regulation to The Christian Post as an important policy for Muslim student organizations because it allows them “to select their own leaders and define their own mission by their faith’s principles.” He continued: “This right should be reserved for all student organizations, and not usurped by university officials based on their own shifting, unpredictable standards.”

Yet in August 2021, the Biden Administration announced that it was reviewing the Free Inquiry Rule. With the end of a comment period for this proposed rule change in late March, the administration is preparing to rescind existing protections.

Sens. Tim Scott (R-SC) and James Lankford (R-OK), along with Congressman Tim Walberg (R-MI), are responding by introducing a bill to head off a reversal of the Free Inquiry Rule. They introduced the Equal Campus Access Act of 2023 to protect religious student organizations from discrimination on campus.

“Too many public institutions of higher learning are silencing the voices of faith-based student groups, and I am proud to join my colleagues in standing up for the First Amendment," said Sen. Tim Scott. "Freedom of speech isn’t just a nice idea – it’s a core American ideal.”

“On America’s college campuses, freedom of expression is under attack,” said Sen. Lankford. “Colleges need to remain an open arena for debate, discussion – and most importantly – faith.”

“Over the past few years, we have seen a concerning increase of incidents on college campuses where free speech and free association of students has been restricted due to religious beliefs,” Rep. Walberg said. “Students should not have to give up their First Amendment rights of speech, religion, and association to attend a public college …”
​
Protect The 1st will closely monitor the administration’s rule change, its language and impact, and any legislative proposals offered in response to that change. 

​Stanford University Law School Dean Jennifer S. Martinez penned a 10-page letter that is a masterful defense of the spirit of the First Amendment in higher education. Along the way, she demonstrates that behavior has consequences. Dean Martinez announced that Associate Dean Tirien Steinbach, who orchestrated student hecklers’ abusive veto of the remarks of federal judge Kyle Duncan, is now “on leave.”
 
After that traumatic event, Dean Martinez arrived at the classroom where she teaches her constitutional law class. She found her whiteboard covered in fliers. One read: “We, the students in your constitutional law class, are sorry for exercising our 1st Amendment rights.” Some on Twitter made snarky remarks that these law students don’t understand that the First Amendment only restrains the government. It does not cover an elite, private university. But the snarks are wrong.
 
In her letter, Dean Martinez responds that the First Amendment certainly does apply to the university. She cites California’s Leonard Law, a statute that prohibits private colleges from making or enforcing rules that would punish students for speech that would be protected under the First Amendment and California Constitution in a public university. The problem is, for the protestors who shut down the judge’s speech, the students in need of protection would be the members of the Stanford chapter of the Federalist Society who invited the judge to Stanford.
 
That legalistic approach is necessary. After all, Martinez writes, her students are in a law school. But the body of her piece is about the spirit of debate and open exchange that is the heart of a First Amendment society.
 
Martinez distinguishes between an indoor university classroom and an outdoor event, where under settled First Amendment law, boisterous demonstrations might be more acceptable. Students also have a right to silently uphold signs indoors. But they do not have a right to shout down speakers.
 
Central to Martinez’s letter is that “diversity, equity, and inclusion actually means that we must protect free expression of all views.” That principle, apparently shocking to some, includes protection of the conservative Federalist Society. Those who don’t understand this are turning their backs on “rights to freedom of association that civil rights lawyers fought hard in the twentieth century to secure.”
 
Martinez embraces the 1967 Kalven Report, popularly known as the University of Chicago principles. It declares: “The university is the home and sponsor of critics; it is not itself the critic.”
 
Having set the logical premise of her argument, Martinez turns to a powerful peroration, likening the DEI ethos prevalent in today’s campuses to a call for academic and philosophical freedom.
 
“We support diversity, equity, and inclusion when we encourage people in our community to reconsider their own assumptions and potential biases. We support diversity, equity, and inclusion when we encourage students to connect with and see each other as people.”
 
She adds that “some students might feel that some points should not be up for argument and therefore that they should not bear the responsibility of arguing them (or even hearing arguments about them), but however appealing that position might be in some other context, it is incompatible with the training that must be delivered in a law school. Law students are entering a profession in which their job is to make arguments on behalf of clients whose very lives may depend on their professional skill. Just as doctors in training must learn to face suffering and death and respond in their professional role, lawyers in training must learn to confront injustice or views they don’t agree with and respond as attorneys.”
 
She concludes by announcing that the law school will be holding a mandatory half-day session in spring quarter for all students on the topic of freedom of speech and the norms of the legal profession.
 
No doubt, such training is necessary. For those of a certain age who remember reading Milton’s Areopagitica in high school, it is worrisome that an elite law school must conduct remedial training on the value of open debate and free speech. Dean Martinez’s letter shows many in academia are willing to take strong moves to reignite devotion to the First Amendment.

​Gov. Ron DeSantis on Monday signed into law a measure that expands that state’s educational tax credit for parents to send their children to private schools. Educational savings accounts will now be available to any Florida family with children eligible to enroll in a K-12 school.
 
“We fundamentally believe the money should follow the student and be directed on what the parent thinks is the most appropriate education program for their child,” Gov. DeSantis said.
 
To underscore this last point – that the right to educate children is a powerful enabler of the First Amendment’s guarantee of the free exercise of religion – Gov. DeSantis held the signing ceremony at the Christopher Columbus High school, a Catholic school in Miami run by the Marist Brothers. As he signed the bill into law, the governor was surrounded by students from that school and from the St. Brendan Elementary school next door.
 
One Catholic organization responded that the new law makes Florida “arguably the best state for educational freedom in the country.”
 
Private schools frequently offer a superior learning experience compared with the public education system. National polls show a strong preference among parents for private education, including charter schools, private academies, and religious schools.
 
Moreover, religious schools give parents the option of educating their children in the faith tradition of their choosing, while meeting rigorous state standards for required courses. In many cases charter schools, private academies, and religious schools greatly outperform public schools. The Florida Conference of Catholic Bishops noted that if a student disenrolls in a public school, it does not lose any of its local funding or supplementary state funding that is not tied to enrollment.
 
Florida follows on the heels of Arkansas, which became the fifth state in two years to pass universal school choice, often with bipartisan support. Democratic governors of Illinois and Pennsylvania have moved to expand access to private scholarship options.
 
Attention now turns to Texas, which has no single widespread voucher or education savings account program. This is likely to change, as the rising number of school choice states is inspiring Texas legislators to craft proposals to widen options available to parents.
 
Bishop Michael Olson of the Diocese of Fort Worth urged the Texas legislature and governor to pass school choice legislation for Lone Star families. Bishop Olson, in describing school choice as a top priority of the Texas Catholic Conference of Bishops, quoted Pope Paul VI: “Parents, who have the primary and inalienable right and duty to educate their children, must enjoy true liberty in their choice of schools.”

​In a recent piece, Eugene Volokh, renowned legal scholar and Protect The 1st Senior Legal Advisor, examined the question of the potential for notoriously loose-lipped AI chatboxes, like Google’s Bard or ChatGPT, to be successfully sued for defamation.
 
Google, he notes, posts a disclaimer with Bard, but disclaimers don’t protect other news organizations from being sued for defamation. Volokh writes:
 
“No newspaper can immunize itself from libel lawsuits for a statement that ‘Our research reveals that John Smith is a child molester’ by simply adding ‘though be warned that this might be inaccurate’ (much less by putting a line on the front page, ‘Warning: We may sometimes publish inaccurate information’).”
 
In one instance, ChatGPT seems to have made up accusations of tax fraud, sexual harassment, guilty pleas, and other charges against law professors, with damaging quotes about them by reputable observers that were never made. It appears that chatbots sometimes write novels. Volokh then goes on to produce a solid primer on libel law in a few hundred words and how it might apply to this technology.
 
When one clicks on Bard, Google warns the user that this chatbot “is an experiment and may give inaccurate or inappropriate responses.” For the makers of this astonishing but still-flawed technology, we wonder if the inevitable defamation that comes from the mouths of these technological babes will produce a bonanza for trial lawyers on the same scale as the Americans with Disabilities Act.
 
Under the ADA, small businesses became liable for lacking wheelchair ramps and other handicapped accessible entries into their businesses. As a result, a whole industry of Lincoln lawyers popped up, driving around looking for restaurants and retail outlets that lacked a ramp, or with entry points that were not fully up to the code, engendering misery and bankruptcy for many mom and pop cafes and stores. Will some lawyers start filing queries about doctors, lawyers, law professors, sports stars, and leading business leaders in a search for defamation? And if they do, will they bear any responsibility for helping to create it?
 
Defamation law is a tricky affair. It can be both a censor and an enabler of free speech. AI is a new technology that needs robust public participation to correct its flaws. Perhaps it would be best if chatbots were given a safe harbor in exchange for a promise from developers to immediately correct defamatory statements. Perhaps, too, some sort of watermark and its sonic equivalent would be in order for chatbot responses. This is young technology, still in the nest, and it will have an inevitable period of awkward development.

​Rome persecuted minority religions by making a hideous example of the pious. In the third century, the Roman Emperor Diocletian executed Christians by burning or flaying them alive, razing their churches, and forcing priests at the point of a sword to publicly offer sacrifices to the Roman gods.
 
We all know how that turned out. In one of the great boomerangs of history, the persecution of Christians and heroism of martyrs evoked sympathy and curiosity from fellow Romans, opening the way to the conversion of the whole empire.
 
The People’s Republic of China seems to have learned from this history that public spectacle can be counterproductive. It is developing intricate, insidious, and largely nonpublic ways to use technology to persecute religious minorities in order to shrink them out of existence. The use of technology to persecute individuals is something that could happen in the United States as well.
 
First, some background: ChinaAid, a religious persecution watchdog, released its annual persecution report for 2022, in which it found China is escalating its attacks on Chinese Christian churches. At the center of Beijing’s tightening squeeze on religious freedom is a smarmily named “Smart Religion” app that applicants must fill in with their personal information before being allowed into a worship site.
 
And when compliance with this and many other rules falter, Chinese authorities fabricate fraud charges against churches. They effectively outlaw tithing, starving churches of income. Many pastors have been imprisoned.
 
China has recently deployed harsh regulations to target online religious content as well. Several Christian websites have been purged from the internet. WeChat, the primary texting app in China, implemented censorship blocks against common Christian words and terminology.
 
In short, while no one has been flayed alive on public television, no one needs to be. Instead, China is using technology to distribute slow, gut-wrenching discouragement, intimidation, and censorship to do the job. Most insidiously, China’s persecution demonstrates how technology can be used to suppress the faithful in a manner that appears softer than the persecutions of old, but that ultimately work in a much more comprehensive – and perhaps, effective – way.
 
The example of China should serve as a warning to Americans of all stripes about the value of data privacy.
 
Americans’ personal information – including not only our religion, but also our ethnicity, gender, sexual orientation, and income level – is gathered by data brokers and sold to commercial and governmental actors, including a dozen federal agencies. Our government thus has warrantless access to similar information as in China, but without the need for a controversial app.
 
As we have said many times before, our government, often with the best of intentions, is putting together all the pieces needed for a Chinese-style surveillance state at home.
 
We trust that our data won’t be used against us as it is in China, but there are currently few legal protections against it. U.S. government agencies have already used private data to monitor religious minorities, including apps for Muslim prayer and dating. That’s why we support measures that would prevent data brokers from selling our personal information to law enforcement and intelligence agencies without authorization by a court.

​It could not have happened at a worse time for TikTok, the fourth most popular social media platform in America. Just days before TikTok CEO Shou Zi Chew was grilled before the House Energy and Commerce Committee, with calls echoing off the walls of the hearing chamber to ban TikTok in the U.S. market for scraping Americans’ data for China, news broke that the Department of Justice and FBI opened an investigation into the social media platform’s Chinese parent company, ByteDance. Investigators want to know if ByteDance used the app to track the location and movements of American journalists.
 
According to Emily Baker-White, a Forbes reporter who was herself surveilled by ByteDance, the department and U.S. Attorney for the Eastern District of Virginia have hit the Chinese firm with subpoenas about its purported surveillance of U.S. journalists.
 
If this story holds up, it will likely kill any serious consideration by the U.S. government of the proposal advanced by TikTok to compartmentalize its data inside the United States. As a series of leaks from inside the company show, for all practical purposes TikTok seems to have little independence from its owners. The use of TikTok to surveil American journalists would be an astonishing show of bad faith at a time when the company is pledging transparency and accountability.
 
In the Thursday hearing, Rep. Tim Walberg (R-MI) asked: “Today, do ByteDance employees in Beijing have access to American data?” Chew replied: “We rely on global interoperability, and have employees in China, so yes, the Chinese engineers do have access to global data.” He said data stored in the United States and Singapore is accessed in China only for “business purposes.”
 
As this story unfolds, we look forward to learning what Chinese intelligence believed was so important that it had to surveil U.S. journalists at this sensitive time. Were they following reporters who were speaking to dissidents or whistleblowers inside the company?
 
TikTok’s purported intrusion into journalists’ locations should remind us that confidentiality for sources is the lifeblood of journalism. Without being able to protect a source, journalists would struggle to reveal malfeasance in government and business. The TikTok story should prompt civil libertarians to double down on the need to protect journalists at home – as well as their sources – from the prying eyes of U.S. prosecutors.
 
As Members of Congress debate a ban of TikTok, we recommend that they also debate and pass the PRESS Act, which would bar prosecutors, except in emergency national security circumstances, from requiring the production of the notes and sources of journalists in court. This is a practice that has worked well in 49 states.
 
While there is a big difference between spying on journalists and using lawful domestic means to reveal their sources, the need to protect the independence of a free and unfettered press is unchanged.

​Luke Goodrich of the Becket Law Firm held his ground in the face of skeptical questioning from several judges on the Ninth Circuit Court of Appeals in the Oak Flat case.
 
“What is a substantial burden?” one judge asked. He wanted to know if the congressional deal that would allow a foreign mining company to dig up the sacred land of the Apache in the Tonto National Forest in Arizona – known as Oak Flat – and transforming it into a giant crater would quality as a substantial burden violation under the Religious Freedom Reformation Act (RFRA).
 
“Completely barring access or denying access is a substantial burden,” Goodrich replied, citing precedent in Supreme Court decisions, Little Sisters of the Poor, and Hobby Lobby.
 
“What is an unsubstantial burden?” asked one judge. He returned to this question again and again, asking how trivial does a violation of someone’s religion have to be before it can be discounted?
 
In response, Goodrich kept returning to idea of a “baseline” from which to evaluate the impact of an action on a religious practice. He implied that the destruction of a people’s religious site would certainly qualify as a substantial burden under any meaning of the law.
 
One such baseline that was brought up repeatedly by Judge Ronald M. Gould is the 1852 treaty between the Apache and the federal government.
 
That treaty, Judge Gould noted, promised that the government would respect the “prosperity and happiness” of the Apache. Can the Apache be happy if the government allows the destruction of their sacred religious site? Goodrich replied that the Apache indisputably have property rights that the land swap and mine would abrogate, creating a substantial burden. A government lawyer dismissed that assertion, calling the 1852 document “just a peace treaty” that cannot convey enforceable property rights – an answer that seemed to have left Judge Gould nonplussed.
 
The Apache and their defenders, including the Protect The 1st Foundation (whose amicus brief was cited by one judge in his questioning), were elated when the Ninth Circuit agreed to rehear this case after finding for the government with a three-judge panel. In a dissent, Judge Marsha Berzon had called her peers’ ruling “absurd,” “illogical,” “disingenuous,” and “incoherent,” seeming to set up a reversal.
 
The tone of today’s questioning should leave both sides uncertain. While several judges seemed skeptical of the Apache’s case, many of the 11 judges of the Ninth’s en banc panel did not ask questions. How the majority will vote is unpredictable. In the meantime, the Apache are holding prayer vigils asking the Creator to guard the centerpiece of their heritage and religion from destruction.

​We let some time pass for all the details to come in about the auto-da-fé that students and staff inflicted on Judge Stuart Kyle Duncan of the 5th Circuit Court of Appeals. Let us review these details and then suggest some next steps for Stanford.
 
Multiple sources and video confirm the judge was shouted down, berated, and abused during a lecture he had been invited to give to the Federalist Society chapter at Stanford Law on “The Fifth Circuit in Conversation with the Supreme Court: Covid, Guns, and Twitter.”
 
In the leadup to Judge Duncan’s talk, students at Stanford Law put up flyers that not only targeted Judge Duncan, but also students in the Federalist Society, posting their pictures and saying they “should be ashamed.” Over 70 students also emailed the FedSoc chapter asking it to cancel the event or move it to Zoom, arguing that Duncan has “proudly threatened healthcare and basic rights for marginalized communities.”
 
On the day of the event, around 100 protesters picketed outside the event, booing attendees, and calling out individual classmates. Protesters came into the room, holding signs with political slogans and shouting over any attempt by Judge Duncan to speak. For about ten minutes, Judge Duncan tried to give his planned remarks, but the protestors simply yelled over him.
 
Tirien Steinbach, Stanford Law’s Associate Dean for Diversity, Equity, and Inclusion, and the University's student-relations representative, initially allowed protestors to continue to disrupt the event. She failed to enforce the school's policy against disrupting speakers, despite assurances given to this speaker that he would be protected.
 
Finally, Dean Steinbach stood up to control the crowd, but only after taking time to criticize Judge Duncan, saying that he “has caused harm.” Rather than telling disruptive students to respect the speech of a sitting federal judge and ask challenging questions later, Steinbach stated that “this event is tearing at the fabric of this community that I care about and am here to support.”
 
Steinbach repeatedly asks: “Is the juice worth the squeeze?” She clarified “is it worth the pain that this causes and the division that this causes?” Apparently free expression is only worth defending if a diversity administrator finds it not divisive (a standard as old as the trial of Socrates).
 
Steinbach finally encourages the students to allow Judge Duncan to speak, but without any serious reprimand to the protesters who violated school disruption policies, who lobbed verbal abuse at fellow students and the judge, and who held the most power in this situation. Thus, she validated their tactics and set a terrible precedent.
 
Although Judge Duncan was eventually allowed to speak, he never gave his prepared remarks as the audience moved directly to Q&A. The questions were predictably unbecoming of law students at one of the nation’s top schools. One heckler hurled lewd insults, and Judge Duncan had to be escorted out by federal marshals.
 
After the event, Stanford President Marc Tessier-Lavigne and Stanford law school dean Jenny Martinez issued a joint statement apologizing to Judge Duncan. Citing Dean Steinbach’s speech, the statement said that “staff members who should have enforced university policies failed to do so, and instead intervened in inappropriate ways that are not aligned with the university’s commitment to free speech.”
 
This incident was beyond unacceptable. You don’t have to agree with the judge’s views on jurisprudence or gender to worry about where such behavior is heading. While Protect The 1st is pleased by Stanford’s statement, it is only a baby step in the right direction. Stanford must commit itself to restoring freedom of speech, academic freedom, and respect for diversity of thought.
 
Stanford can begin by inviting Judge Duncan back to speak. Such a gesture would send a strong message that Stanford is truly interested in what a sitting federal Judge has to say. In January, Yale Law did much the same when it reinvited Kristen Waggoner, CEO, President, and General Counsel of the Alliance Defending Freedom, to speak after undergoing a similar struggle session. That protest caused a firestorm, with some judges announcing they would not consider Yale Law graduates for clerkships.
 
Stanford could also take a hard look at the culture of censorship and surveillance that it, like many schools around the country, has built in the last few years. Last month, Protect The 1st reported on Stanford’s bias reporting system, which is used to anonymously report on students or faculty who commit wrongthink. Scores of Stanford faculty have called on the university to investigate free speech and academic freedom on campus, and to abolish the anonymous reporting system. What happened to Judge Duncan is just one flare-up of the chronic problem of intolerance, fear, and repression present on some college campuses.
 
And if Dean Steinbach and students do this to another speaker, Stanford must defend its reputation by firing Dean Steinbach and suspending or expelling students.