​At first glance, the news that the National Constitution Center in Philadelphia has opened a gallery dedicated to the five freedoms of the First Amendment might strike producers and consumers of headline news as about as momentous as a national pie eating contest.
 
But take a look at Asha Prihar’s colorful blog at billypenn.com showcasing this exhibit’s depth, both historical and philosophical, and ask yourself if this exhibit isn’t well-timed and sorely needed. The gallery includes a 1789 letter from George Washington at the Constitutional Convention explaining to Quakers how the First Amendment, then awaiting ratification, would protect religious liberty. It tells the story of Elijah Lovejoy, an abolitionist who refused to quit publishing anti-slavery editorials in the face of angry mobs – and paid for his stubborn dedication to an ideal with his life. It tells the story of how the First Amendment advanced civil rights and how it relies on the good judgment of the people to tolerate vile speech upheld in the Supreme Court decision, Snyder v. Phelps (2011).
 
As one digitally strolls through this gallery, it becomes clear that the need of 21st century America for such an exhibit is cavernous. Case in point, an eminent law professor of our acquaintance, who teaches at a highly ranked law school, told us that when he recently began to teach the rudiments of the First Amendment, students balked. One asserted that a prominent politician with a national profile said things that were “evil” and that he therefore should be silenced.
 
The professor asked obvious questions:
 
Who decides what is “evil”?
 
Would you put an American – in this case, a major political figure elected by a majority of voters in his home state – in prison for saying something you regard as evil?
 
If we outlaw speech we don’t like, does it go away – or are we investing it with the glamor of the forbidden?
 
And what will you do when someone defines your speech as “evil” and comes after you?
 
These are the basic questions that were once presented in high school civics classes, not heard for the first time in a law school. In the face of these questions, this one law school student persisted –“but we just can’t let this guy go around saying things that are evil.” None of the professor’s questions penetrated. There is a level of senselessness in higher education, in public schools and in government – coming from both the right as well as the left – regarding the principles of free speech that approaches the satirical levels of Mike Judge’s 2006 masterpiece, Idiocracy.
 
So yes, the opening of a First Amendment Center at the National Constitution Center is something to be celebrated. So are the daily activities of the Free Speech Center at Middle Tennessee State University, which promotes the First Amendment through ad campaigns, a YouTube channel, and instructional materials for classrooms across the nation.
 
We cannot explain and celebrate the First Amendment often enough – the contentious, cantankerous, sometimes ugly, sometimes beautiful exercise of free speech that makes us Americans.

​The Fourth Circuit Court of Appeals recently handed down a disappointing ruling in an important speech case, holding that a college professor who has been the target of escalating retaliation by his university for criticizing his department is not protected by the First Amendment.
 
North Carolina State’s Stephen Porter, a tenured professor on the NC State faculty since 2011, first got into trouble with higher-ups in 2016 when he objected to adding a question about “diversity” to student course evaluations. What followed was a mounting series of attempts by the university to rid themselves of Porter and to stifle dissent.
 
Porter was accused of “bullying” the person who had proposed adding the question. Later, in 2018, after Porter sent an email linking an Inside Higher Ed article that alleged an NC State faculty search was slanted to favor a minority applicant, Porter was told the administration would “find ways to exclude [Porter] from critical aspects of his job.” In 2019, Porter received another email that stated that students in the department were having strong reactions to his criticism of the Association of the Study of Higher Education (ASHE).
 
Finally, on July 5, 2019, Porter received notice that he was being removed from the Higher Education Program Area – a valued post – because the faculty could not make progress toward resolving issues with him there. After this incident and other punishments, Porter filed suit against NC State in 2021.
 
Porter’s case was first dismissed by the district court judge, who argued he had no legal grounds. Now, the Fourth Circuit has upheld the district court’s ruling, holding that Porter’s statements were not protected by the First Amendment because they were made in his capacity as an NC State employee, nor was his “bullying” protected because it was “an unprofessional attack on a colleague.”
 
Enter Judge Julius Richardson, the lone dissenter in this case.
 
In his dissent, Judge Richardson persuasively argues that Porter’s comments on the ASHE are protected by the First Amendment. Porter could have remained silent about the diversity question and about the drift of ASHE into ideological activism. Porter was not required to submit his opinion as part of his job, and, therefore, he was speaking as a citizen and is protected under the First Amendment.
 
Furthermore, Judge Richardson took issue with the majority’s assertion that because the school did not act against Porter for more than six months after the last of his controversial statements, he had not clearly established that his speech was the reason for the punitive actions taken against him. Judge Richardson argues that obviously NC State had for years been ratcheting up its threats against Porter because his statements frustrated the department’s activist objectives. It strains credulity to think that Porter’s criticism of the department wasn’t the motivating reason.
 
In the last instance, however, Judge Richardson noted that “bullying” does not push Porter’s speech outside of First Amendment protection. Even if that characterization were true, the First Amendment would be toothless if it didn’t cover offensive speech. (Porter did in one conversation use a four-letter word.) Contrast this treatment to Georgetown University’s acceptance of a professor who tweeted that sitting Supreme Court Justices should suffer miserable deaths and have their corpses castrated.
 
We commend Judge Richardson for his valiant stand in defense of the First Amendment. The issues at stake make this case ripe for SCOTUS review. If Porter’s case is left as-is, his situation would provide a dangerous roadmap for censorious administrators around the country on how to micromanage dissenting faculty until they either quit in frustration or can be fired. We look forward to further developments in this case.

​National outrage over a rural Kansas police department’s ransacking of a newspaper, the Marion County Record, will almost certainly result in a massive legal reckoning. But will its larger implications prompt Congress to move to protect journalists from similar interference by federal authorities?
 
Here’s the background: On Friday, the Marion police department launched simultaneous raids on the homes of a reporter, an 80-year-old councilwoman, and The Record’s 98-year-old co-owner, Joan Meyer, mother of editor Eric Meyer. According to the account in The Record, the trauma left Joan Meyer “stressed beyond her limits,” prompting her to quit eating, and to collapse and die the next day.
 
And for what? The Marion police launched this extreme execution of a search warrant to track down an informant who revealed a letter from a state agency about a local restauranteur’s DUI to a Record reporter. The newspaper ultimately chose not to print this story out of concern that the informant acted maliciously in revealing the restauranteur’s personal information.
 
“The police confiscation of virtually all of the equipment of a 4,000-circulation newspaper will be one for the textbooks in both law and journalism schools,” said Rick Boucher, Senior Policy Advisor to Protect The 1st and a former U.S. Representative from Virginia and Member of the House Judiciary Committee. “The seizure of a newsroom is an outrage that demonstrates that absent proper legal restraints, and sometimes even with them, some in officialdom will use a petty excuse to pry open a reporter’s notebooks.
 
“These events triggered a raid in which the police seized computers, servers and snatched cellphones,” he said. “The Record reports that one reporter’s hand was reinjured by having her phone forcibly jerked out of her hand. The police took so much equipment that the staff is scrambling to find a way to publish the newspaper’s next edition.
 
“The police did not just raid The Record, they potentially put it out of print. And as a result, the police – and the politicians they work for – now have ready access to vast amounts of confidential interviews, official contacts, and other investigations that any local paper customarily conducts into city hall.”
 
Boucher noted that the raid is likely a violation of the federal Privacy Protection Act of 1980, opening the door to significant liability for the town.
 
“The larger takeaway from this event is the appetite that some in authority have to bully a sometimes nettlesome press,” Boucher said.
 
“Kansas, like most states, has a shield law that protects journalists and their sources,” he said. “Rather than taking the extreme step of raiding the newspaper’s office and seizing all of its records, if the police had probable cause to believe that stolen property was in the possession of the paper, a subpoena for the record in question would have put in motion a court proceeding at which a judge could have decided whether the Kansas shield law applies. It will be instructive to read the probable cause affidavit behind the search warrant that was issued.”
 
Boucher noted that the federal government, with its huge apparatus of prosecutors and surveillance, is restrained by no such law. While lawmakers and journalists in Kansas sort out how to avoid events like this, Congress should take this opportunity to pass the Protect Reporters from Exploitive State Spying (PRESS) Act to give journalists at least some protection from official intimidation.
 
The PRESS Act passed the U.S. House unanimously last year and was recently favorably reported again without dissent by the House Judiciary Committee.
 
“The House should schedule a full vote when it returns in September,” Boucher said. “Action in the Senate should swiftly follow.”

​If the State of North Carolina has its way, the U.S. Supreme Court could soon hear its first case addressing the constitutionality of so-called “ag-gag” laws, statutes that aim to punish whistleblowers and undercover activists.

North Carolina passed the Property Protection Act (PPA) in 2015, seeking to codify a ruling emanating from a late-1990s conflict between Food Lion and ABC News in which two journalists posed as employees and covertly recorded unsafe food-handling practices. Food Lion sued the network, and the Fourth Circuit Court of Appeals eventually found in the supermarket’s favor. The legislature’s 2015 codification of that ruling, in theory, creates an employee disloyalty cause of action and allows for damages resulting from work stoppage.

It’s a clever framing, but the reality is that the PPA is a little more than an unconstitutional “ag-gag” law designed to shield North Carolina’s large-scale farming industry from journalistic scrutiny. That’s certainly what PETA – which brought the case – believes. And two prominent federal courts have now sided with them.

PETA’s argument is that the PPA unconstitutionally burdens its investigative efforts. Specifically, the organization takes issue with a provision in the law that allows employers to sue for damages any employee who “without authorization records images or sound occurring within” the nonpublic areas of the employer’s private property “and uses the recording to breach the person’s duty of loyalty to the employer.” (Three other provisions are also at issue, each prohibiting similar conduct.)  

A federal district in North Carolina agreed with PETA, striking down the law as a content-based restriction on speech. The Fourth Circuit upheld that ruling insofar as it pertained to newsgathering efforts by PETA and similar animal welfare groups but did not rule on the law’s constitutionality applied to other situations. North Carolina subsequently filed a certiorari petition before the U.S. Supreme Court.

What the State of North Carolina is effectively asking the Supreme Court to do is create a new category of unprotected speech – information collected by an undercover investigation in non-public areas. From a policy standpoint, it’s anathema to the very notion of a free press.

America’s venerable tradition of investigative journalism goes back centuries, and is exemplified by trailblazing reporters like Nellie Bly, who became an inmate at the Women’s Lunatic Asylum at Blackwell’s Island to expose deplorable conditions there. It continues today in the form of citizen journalists like Darnella Frazier, who received a Pulitzer Prize citation for recording the murder of George Floyd by a policeman in Minneapolis in 2020.

The right to record is closely linked to investigative journalism, which is and must always be protected under the Constitution. Judge Henry Floyd of the Fourth Circuit perhaps put it best:
“…while we agree that an employer could freely choose to deny entry to journalists who seek to secretly record its inner workings, it does not follow that a State can create ‘new categories of unprotected speech’ to punish those journalists. The First Amendment limits the government; the government does not limit the First Amendment.”
​
Both the Ninth Circuit and Tenth Circuit have invalidated “ag-gag” laws as incompatible with First Amendment press protections. Eight of 11 “ag-gag” laws passed on the state level have been found unconstitutional. If the Supreme Court agrees to hear oral arguments in this case, the Court will find plenty of precedent.

​Communities have the power to pass laws that protect vulnerable minors from clearly inappropriate material, even in cases where adults have a First Amendment right to view and distribute that material to each other. But such laws have to be precise in how they enforce restrictions. And, one would hope, they’d include solutions to actual problems – not just a response to political passions.

Plaintiffs before a federal court – including bookstores, libraries, and patrons of those establishments – take issue with two specific provisions in Arkansas’s Act 372. The first is Section 1, which creates misdemeanor criminal liability for librarians and booksellers, and even parents, who “[furnish] a harmful item to a minor.” The second is Section 5, which creates a process by which any citizen can challenge the appropriateness of any book in a state library according to local community standards, with final decision-making power in the hands of local county quorum courts or city councils.

As the plaintiffs assert, Section 1 would result in either the widespread removal of books or an outright ban on young people under 18 from entering libraries or bookstores. Section 5, they argue, would allow vocal minorities to tell entire communities what they can and cannot read.
In a remarkably restrained order and opinion, Judge Timothy L. Brooks found that the plaintiffs were likely to succeed on the merits of their case based on the overbreadth of Section 1 and the vagueness of Section 5.

Regarding Section 1, Arkansas code defines “harmful to minors” as “any description, exhibition, presentation, or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse” that lacks “serious literary, scientific, medical, artistic, or political value for minors” or would be deemed “inappropriate for minors” by the average adult, based on potentially restrictive local community standards. Factoring in the state’s very broad definition of “nudity,” it’s clear that Section 1 would result in the censorship of a vast swath of popular books, including many with only fleeting or insubstantial references to sexual conduct. It would certainly cover any book with even the most innocuous depiction of same-sex affection.

Moreover, defense counsel candidly admitted in court that, under their interpretation of the law as written, any reading material deemed harmful for a five-year-old minor would also be deemed harmful for a 17-year-old minor, despite obvious differences between the two in maturity and comprehension of adult themes and issues. The U.S. Supreme Court addressed this issue in Virginia v. American Bookseller’s Association, Inc., suggesting that an interpretation of the term “harmful to minors” that includes speech protected for older minors would raise First Amendment concerns.    

Regarding Section 5, Judge Brooks agreed with the plaintiffs that the provision is likely “void for vagueness” because the term “appropriateness” is left entirely undefined. He further notes that it “would permit, if not encourage, library committees and local governmental bodies to make censorship decisions based on content or viewpoint.”

It's worth pointing out that Arkansas already prohibits the provision of obscene material to minors. Accordingly, Judge Brooks asks, “[w]hat has happened in Arkansas to cause its communities to lose faith and confidence in their local librarians? What is it that prompted the General Assembly’s newfound suspicion? And why has the State found it necessary to target librarians for criminal prosecution?”
​
It is better for legislators to focus on protecting children from real harms, instead of passing sure-to-be-voided legislation.

​The Foundation for Individual Rights and Expression is back in court again to remind the school system that they don’t have the power to curtail student speech outside of the classroom. The organization is representing a 17-year-old rising senior who was suspended by his Tennessee public high school for posting memes making fun of the principal’s dour personality.
 
In August of 2022, Tullahoma High School’s principal Jason Quick and assistant principal Derrick Crutchfield called the student, whose name is not mentioned, to their office and interrogated him about three memes he posted to Instagram off school grounds and outside school hours. As a consequence, Quick suspended the student based on a school policy prohibiting students from posting images on social media which “embarrass,” “discredit,” or “humiliate” another student or school staff. 
 
As FIRE attorney Conor Fitzpatrick said, “The First Amendment bars public school employees from acting as a 24/7 board of censors.” He added that “as long as a student’s posts do not substantially disrupt school, what teens post on social media on their own time is between them and their parents, not the government.”
 
FIRE is representing the student in the hopes the courts will solidify their 2021 ruling in Mahanoy Area School District v. B.L. In that case, also filed by FIRE, the Supreme Court held that Pennsylvania’s Mahanoy Area High School violated former high school cheerleader Brandi Levy’s First Amendment rights by suspending her from the cheerleading team for voicing her frustrations with the school in a Snapchat post. In an 8-1 decision, the Court held that Levy’s comment, similarly posted while off-campus, was directed to her “private circle” of online friends. The Court affirmed that the incident did not constitute the “sort of ‘substantial disruption’ of a school activity or a threatened harm to the rights of others that might justify” disciplinary action.
 
By filing this suit, FIRE cements its hard-fought precedent by standing up for students’ First Amendment rights. The phrase used to be that students don’t have to “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” How far we’ve come that now we need lawsuits to remind schools that students don’t shed their First Amendment rights at home either. PT1 is very pleased to express our support for FIRE’s position in the litigation.

​In the First Council of Nicaea in the 4th century AD, Christians assembled to debate and set Christian doctrine under the watchful eyes of the Roman emperor Constantine. In the 21st century, some try to settle theological disputes through costly and frivolous lawsuits under the eyes of a secular judge. The role of secular law in theology arises from Janay Garrick’s complaint against her employer, the Moody Bible Institute, for gender discrimination.
 
The MBI affirms the traditional Catholic doctrine of male-only ordination to the priesthood, a belief as old as the church itself, but one which has become increasingly controversial over the last half century. In fact, the question of women’s ordination is a crucial doctrinal split among Christians today.
 
Garrick calls herself an “egalitarian Christian” because she affirms the ordination of women. Garrick is herself an ordained minister and worked as Instructor of Communications in MBI’s Communications Program from 2014 to 2017.
 
Garrick disclosed her beliefs as an egalitarian Christian during the interview process, but it wasn’t until she attempted to file her status as an ordained minister to receive certain institutional benefits that conflict with her employer began. MBI subscribes to the theological principle of Complementarianism, the belief that God intended different roles for men and women within the church. As such, MBI provides its ordination-related benefits to men only.
 
In her suit, Garrick argues that MBI “both tolerated and cultivated an environment that was hostile to female faculty and students.” But while such complaints may have merit in any other context, in a constitutionally-protected religious organization whose views on women’s ordination were clear and unambiguous prior to her hiring, Garrick’s challenge should fail.
 
It is necessary to the proper functioning of any religious order or organization to be able to enforce core doctrinal beliefs. Otherwise, institutions would collapse under the weight of dissent. The Constitution protects this right.
 
But the great feature of the First Amendment is that it protects the religious liberty of church and parishioners alike.
 
Garrick has the right to practice her faith as she sees fit, and this means that she is free to worship or pursue employment at one of the hundreds of denominations in the United States more theologically aligned with her beliefs. Just as it would be an infringement on the rights of the Moody Bible Institute to force everyone else within it to accommodate one dissenter, so would it be a violation of Garrick’s rights to force her to profess theological beliefs contrary to her own.
 
We look forward to further developments in this case.

The U.S. Supreme Court ruled 6-3 in 303 Creative LLC v. Elenis to uphold the First Amendment right of a digital designer not to be compelled to write, design, and create websites that violate her beliefs.
 
Protect The 1st applauds the Court’s decision and the reasoning behind it. Despite the religious roots of the appellant’s beliefs, this is fundamentally a case about the free exercise of speech. The Court correctly decided that web design is an expressive industry, and that no writer should be compelled to write something to which they object.
 
Lorie Smith owns 303 Creative LLC, a web design company she wanted to expand into the wedding industry. But 303 Creative’s expansion ran headlong into the State of Colorado’s Anti-Discrimination Act (CADA), which would have required her to design websites for same-sex weddings in violation of her religious beliefs. Smith and 303 Creative lost before a U.S. District Court and the Tenth Circuit Court of Appeals before being heard in oral arguments before the Supreme Court last year.
 
In a ringing defense of speech, Justice Neil Gorsuch wrote in the majority opinion of the inviolability of free speech under the Constitution. The majority opinion states:
 
“A hundred years ago, Ms. Smith might have furnished her services using pen and paper. Those services are no less protected speech today because they are conveyed with a ‘voice’ that resonates farther than it could from any soapbox.”
 
The Court noted that the Tenth Circuit, which ruled against Smith, had reasoned that Smith’s speech was involved in this case, but that “Colorado could compel speech from Ms. Smith consistent with the Constitution.” The majority concludes that First Amendment precedents “teach otherwise.”

For those who are inclined to see this ruling as the beginning of a discriminatory approach to services, Justice Gorsuch fleshed out the consequences if the Court were to uphold the lower court’s logic.
 
“Under Colorado’s logic, the government may compel anyone who speaks for pay on a given topic to accept all commissions on that same topic—no matter the underlying message—if the topic somehow implicates a customer’s statutorily protected trait … Taken seriously, that principle would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty.”
 
Justice Gorsuch then painted a convincingly realistic dystopian outcome for people on all sides, quoting a dissenting judge on the Tenth Circuit.
 
“The government could require ‘an unwilling Muslim movie director to make a film with a Zionist message,’ or ‘an atheist muralist to accept a commission celebrating Evangelical zeal,’ so long as they would make films or murals for other members of the public with different messages. Equally, the government could force a male website designer married to another man to design websites for an organization that advocates against same-sex marriage.”
 
Justice Gorsuch made it clear that there are sharp limits for this ruling, one that pertains to speech and expressive industries.
 
“[W]e do not question the vital role public accommodation laws play in realizing the civil rights of all Americans …”
 
Quoting a prior ruling that public accommodation laws “vindicate the deprivation of personal dignity that surely accompanies denials of equal access to public establishments,” Justice Gorsuch noted that Smith’s “voice is unique; so is everyone’s. But that hardly means a State may coopt an individual’s voice for its own purposes.”
​
Protect The 1st agrees with the Court’s reasoning and urges people on all sides to take the same cool look at the consequences that would have flowed from an alternate ruling.
 
One doesn’t have to agree with a particular belief to agree with the principle that speech should never be coerced. The Court’s opinion provides a narrow exception, one to be kept within the boundaries of the exercise of speech.

​Last week, the U.S. District Court for the Western District of Washington at Seattle handed down a ruling that drew a sharp line between constitutionally protected speech and acts of vandalism on public and private property.
 
The case, Tucson v. City of Seattle, had to do with a city ordinance that held a person is guilty of property destruction if he or she intentionally damages the property of another and writes, paints, or draws on any public or private building, structure, or personal property owned by any other person. Though a seemingly straightforward proscription on public or private acts of vandalism, overly broad and vague language within the ordinance made it susceptible to legal challenges.
 
What about washable paint or chalk? What about some public spaces, like sidewalks, on which people routinely chalk messages?
 
The case involved plaintiffs who wrote political messages critical of the Seattle police department in charcoal both on public sidewalks and on temporary walls outside the police precinct. The court preliminarily enjoined the ordinance, concluding that “Plaintiffs have demonstrated a strong likelihood of success on the merits of their First Amendment overbreadth argument.”
 
The problem with the ordinance is that it, as the court stated, is so broad that it “criminalizes innocuous drawings (from a child's drawing of a mermaid to pro-police messages written by the Seattle Police Foundation that can hardly be said to constitute ‘visual blight’ and which would naturally wash away in the next rain storm.”
 
We are pleased by the court’s ruling and agree that in cases involving reasonable restrictions on the First Amendment, such as the defacing of property, there needs to be clearly-defined boundaries that give maximal protection for free expression. Without these protections, laws risk curtailing a host of valid speech.
 
Such was the case of a 13-year-old girl in 2019, who inadvertently used spray paint instead of washable chalk paint during a climate protest at Seattle City Hall. A man was also arrested in conjunction with the incident for mistakenly providing the girl the wrong kind of paint. The girl was eventually released to her parents, but not before the Seattle Police Department was criticized for arresting her instead of using the incident as a teachable moment. Some felt that incidents where damage is clearly not intended, if the girl had used the correct washable spray paint, should not receive the same severity as other clearly malicious actions. Others point to the damage, which is egregious.
 
Going forward, legislators should clearly define terms and limits when drawing the line between First Amendment activities and vandalism.

​The PRESS Act – Protect Reporters from Exploitive State Spying Act – was introduced in the U.S. House and Senate this morning.
 
This legislation would limit the ability of prosecutors to expose the sources and notes of journalists in federal court. While 49 U.S. states have such press “shield laws,” the federal government has no such protections. This has led to federal intrusions into the records of the Associated Press, The Washington Post, and The New York Times, as well as advocacy journalists on the left and right.
 
The PRESS Act had previously passed the House with unanimous, bipartisan support in September 2022. Today, it was introduced by Rep. Kevin Kiley (R-CA) and Rep. Jamie Raskin (D-MD), and in the Senate by Sen. Ron Wyden (D-OR), and Sen. Mike Lee (R-UT).
 
“Support for the PRESS Act sweeps across ideological divisions in both houses of Congress because it is widely recognized that the basic liberties of all are at stake,” said Bob Goodlatte of Virginia, former Chairman of the House Judiciary Committee and Senior Policy Advisor of Protect The 1st. “At a time when voters and constituents in both parties are concerned about the potential for federal power to be abused and misused, passing the PRESS Act into law this year should be a point of pride for any incumbent.”
 
Rick Boucher, former Virginia congressman, member of the House Judiciary Committee, and now Senior Policy Advisor of Protect The 1st, also stressed the need to pass this legislation in 2023. He was also the lead sponsor of a forerunner bill, the federal press shield legislation that passed the House in 2007 and 2009.
 
“Journalists have been held in contempt and jailed for refusing to reveal their confidential news sources,” Boucher said. “When big scandals, corruptions, and misdeeds that harm the public interest come to light, it is usually because some brave soul on the inside was willing to speak to a reporter.
 
“Let’s protect that whistleblower,” Boucher said. “And let’s protect that journalist as well. By doing so, we protect all our rights.”

​Controversial new realities in American life often require a period of discussion on how to accommodate them and how to square them with existing paradigms. It’s an important precursor to social progress and a fundamental part of existing in a pluralistic society founded on free and open debate.

The issue of transgender athletes is a relatively new one. Trans athletes have every right to compete in sports. So, too, do biological women who endure hard work and sacrifice to win in swim competitions, often with scholarships at stake. To the extent a collision of rights exists here, it can only be resolved by discussing the issue freely and without fear of reprisal.

Yet, when respected voices are silenced in furtherance of a particular agenda, debate – and, by extension, progress and resolution – becomes impossible. Consider the case of Dr. Michael Joyner, a renowned physiologist and professor of anesthesiology at the Mayo Clinic who studies male and female athletes. Earlier this year, Joyner was subjected to disciplinary action for comments he made to the New York Times in an article about transgender swimmer Lia Thomas.

“There are social aspects to sport,” he said, “but physiology and biology underpin it. Testosterone is the 800-pound gorilla.”

In a scathing email, a Mayo Clinic administrator responded to Joyner’s perceived affront with a formal reprimand, an unpaid suspension, the denial of an annual salary increase, and the overt threat of termination – all for the apparent crime of conveying scientific information related to one of his core competencies. Specifically (bordering on satirically), the email cites Joyner’s failure “to communicate in accordance with prescribed messaging.” (The Clinic also took issue with Joyner’s use of “idiomatic language.”)

This is important because the Mayo Clinic is one of the world’s leading medical institutions and the top-ranked hospital in the country according to U.S. News and World Report. As an important hub for academic medical research, its doctors are regularly called upon to offer insight into difficult, health-related topics with national implications. In 2020, the Clinic adopted a “Freedom of Expression and Academic Freedom Policy,” which includes the right to “discuss and present scholarly opinions and conclusions without fear of retribution or retaliation if those opinions and conclusions conflict with those of the faculty or institution.”

While the Mayo Clinic is a private institution with a First Amendment right to speak as it wishes, the organization’s actions against Dr. Joyner plainly conflict with its own policies and are further inconsistent with vigorous, science-based academic debate. Punishing a medical professional for offering valid, scientific statements that happen to clash with emerging or trending social mores is wrong – and will have a chilling effect on science, speech, and academic freedom going forward.
​
If we are to honestly address the difficult topic of transgender athletic competition – without, for example, simply resorting to knee-jerk, blanket bans, it is incumbent on us to allow a robust debate and hear from all sides, including and especially those with pertinent knowledge. It’s a reality – and a requirement – of our American experiment.

The founders left us with a balancing act on religion: the First Amendment guarantees the free exercise of religion, but forbids the government establishment of one. On the whole, an updated policy from the Biden Administration’s Department of Education does a good job of explaining – and promoting – that balance in its new guidance for state and local education agencies on what is, and what is not, permitted in prayer and religious expression in elementary to secondary schools.
 
Comparing the additions and deletions of this policy from the Trump administration’s version reveals – as one might expect from a left of center administration – added emphasis on the “no establishment” clause. But the new policy contains no shocking departures from traditional constitutional protections. Instead, it doubles down on the distinction between religious expression that is government-sponsored, and that which is privately expressed.
 
After noting Supreme Court jurisprudence that “it is no part of the business of government to compose official prayers for any group of the American people,” the updated policy declares that “nothing in the First Amendment, however, converts the public schools into religion-free zones, or requires students, teachers, or other school officials to leave their private expression at the schoolhouse door.”
 
Somewhat defensively, the policy notes that the “principles outlined in this updated guidance are similar” to the 2020 guidance. The new policy clearly responds to the U.S. Supreme Court’s Kennedy v. Bremerton School District opinion (2022), aka “the praying coach case,” in which the Court upheld the right of a coach to pray on a football field after a game.
 
It cautions that schools have some right to discipline a schoolteacher, coach, or other employee for improper speech. It particularly empowers schools to discipline teachers who “pressure or encourage” students to join private prayer. “However,” the policy adds, “not everything that a public-school teacher, coach or other official says in the workplace constitutes governmental speech, and schools have less leeway to regulate employees’ genuinely private expression.”
 
The new policy upholds the right of teachers and other school employees to meet for prayer before school or during breaks. It upholds the central place religion has held in music, history, and literature. It allows philosophical questions concerning religion, the history of religion, comparative religion, religious texts as literature, and the role of religion in the history of the United States. It recognizes that much classical music has religious themes, which is no bar to the classics being played or sung by students.
 
The updated policy affirms the right of students to “express their beliefs about religion in homework, artwork, and other written and oral assignments free from discrimination based on the religious perspective of their submissions.”
 
Most commendably, the policy calls for the teaching of these twin First Amendment principles as an “opportunity to assist America’s youth in developing an understanding of these constitutional protections as they apply to people of all faiths and no faith and an appreciation for the core American values and freedoms that undergird them.”
 
In an age of culture wars, it is refreshing to see a policy from a Republican administration revised by a Democratic administration with stronger emphasis – as you would expect -- on government neutrality, while maintaining the enduring respect for religious freedom rooted in the U.S. Constitution.

​There is nothing easy about Rep. George Santos. His pending legal cases throw into relief two very different takes on the First Amendment – the public’s right to know against legitimate reasons to bestow anonymity.
 
Congressman George Santos was recently arraigned in a New York court to face a 13-count criminal indictment. Federal prosecutors claim that Rep. Santos stole campaign funds, unlawfully obtained pandemic unemployment payouts, and provided false information to Congress on financial documents. However, the court allowed Rep. Santos to be released on a $500,000 bond cosigned by three anonymous suretors, a decision that has been criticized as highly unusual.
 
Now, The New York Times has filed a motion asking the court to release the unredacted versions of judicial records identifying those who guaranteed Rep. Santos’ bail. The Times argues that “federal common law and First Amendment endow the public with a presumptive right of access to judicial proceedings and records, including to bond proceedings.”
 
The Times’ motion states: “The public interest in openness is particularly strong in this case. The surety records relate to three individuals who have committed large sums of money to ensure that Rep. Santos can remain at liberty, pending further proceedings. This presents an obvious opportunity for political influence, given Rep. Santos's elected position and his dependence on these suretors. That risk is further heightened by the fact that the very crimes Rep. Santos has been charged with involve abusing the political process for personal gain.”
 
The Times makes a valid point. When a congressman is charged with crimes relating to political corruption, shrouding those who bailed him out could obscure telling facts about this case.
 
But Protect The 1st sees a larger interest to protect, one that cuts to the heart of the protection of speech. Since the landmark Supreme Court ruling in 1958, NAACP v. Alabama, the anonymity of donors has been recognized as critical to the protection of speech and the flourishing of the First Amendment. For that reason, we joined with groups ranging from NAACP to ACLU to advise courts to strike down a California law that would have forced non-profits to disclose their donors.
 
The dangers to NAACP donors in 1950s Alabama exist today in a new, modern form – the threat of doxing, the invasions of one’s home and workplace, and punishment ranging from cancelation to violence. If there is some sinister nexus at play, which The New York Times seems to suspect, those facts will likely come out in court. In the meantime, the public’s larger interests may be better served by sticking with the rules as they are.

​You’ve heard of helicopter parents, but have you heard of the GPS parent?
 
A Louisiana mother is accused of concealing electronic devices on her elementary school-aged child. The devices not only included a GPS tracker, but also allowed the mother to intercept conversations. The school board obtained a temporary restraining order prohibiting her use of these devices on school property. (Hat tip to Eugene Volokh.)
 
The mother then took to hosting a live web log and making ongoing social media posts rich in complaints about school officials. These officials claimed that she “defamed and slandered the reputations” of the school board and staff. The board promptly obtained a preliminary injunction from a Louisiana court restraining the mother from “making or publishing and/or from engaging in any activity to make, disseminate, publish or broadcast defamatory, slanderous, libelous, frivolous and/or fraudulent claims” about the school board and school employees.
 
This case could serve as a primer for 1L law students about how the First Amendment operates. The injunction presupposes that ongoing and future speech can be judged already to be “defamatory, libelous, and frivolous” without a judicial finding. And since when did “frivolous” speech become actionable? (Jimmy Kimmel, The View, call your lawyers.) The Louisiana Court of Appeals lifted the injunction and gave this remedial lesson on the reason why we do not allow prior restraint of speech in America:
 
“The School Board is correct that the protection of the First Amendment does not extend to defamatory and libelous speech. However, for First Amendment protection to be in jeopardy, there must first be a determination that the words are defamatory. Until words lose First Amendment protection, they are guarded against prior restraint …
 
“We also note that the preliminary injunction issued in favor of the School Board prohibits more than the utterance of allegedly defamatory statements. It prohibits speech that is merely disparaging or ‘frivolous’ – speech that is not within the categories excluded from the First Amendment.”
 
Until a court finds speech to be slander or libel, it is protected by the First Amendment. To hold otherwise would be to allow plaintiffs’ lawyers and courts to preemptively declare someone’s future utterances as defamation and start gagging Americans right and left.
 
The Founders shrewdly left us the liberty to speak – and they also left us to deal with the consequences of our speech.

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.

​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.”

​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.

​The lawyers are already at work contesting the decision by the governing board of Arizona’s Washington Elementary School District to exclude student-teachers from a Christian university after a long and productive relationship.
 
In recent years, more than 100 students and teachers-in-training from Arizona Christian University have taught in the district’s elementary schools. ACU’s president, Len Munsil, said that many of these students have been hired as full-time teachers. Munsil also said that the high quality of ACU student-teachers prompted school administrators to ask for more trainees from the university.
 
Then the board noticed the mission statement of the ACU website. The university holds to “biblically informed values that are foundational to Western civilization, including […] the centrality of family [and the] traditional morality and lifelong marriages between one man and one woman.”
 
No one has alleged that any of ACU’s student-teachers have brought religion or discrimination into the district’s public schools. So, what’s the problem? School board president Nikkie Gomez-Whaley said that she doesn’t believe Christian student-teachers can separate their Christian values from their professional obligations, making them unable to treat students equally. “For me,” she told The Christian Post, “this is not a concern about Christianity, there are plenty of Christian denominations who are LGBTQ friendly.”
 
But what about the denominations and religions that hold doctrines similar to that of the ACU?
 
For example, what will the Washington Elementary School District do now about teachers drawn from the pool of more than 60 million Roman Catholic Americans? Despite the softening of Pope Francis on criminalizing same-sex relations, he has not changed the Catechism of the Catholic Church, which calls same-sex relations as “intrinsically immoral and contrary to the natural law.”
 
That’s a stronger statement than the one made by ACU. Is the Washington Elementary school board now going to exclude Roman Catholics?
 
Opposition to same-sex marriage is also prevalent in Orthodox Judaism and Sunni and Shia Islam, as well as many Eastern religions. Is the Washington Elementary school board also going exclude Jewish and Muslim teachers?
 
Let us suggest a way out for the school board: acknowledge that people can belong to faiths that have dogmas with which you disagree or even find offensive. Understand also that all the great world religions endorse the fair treatment of all people. As long as teachers do not bring their faith into the classroom, they should be judged by the quality of their teaching.
 
Anything less than that is a gross violation of the First Amendment’s guarantee of the free exercise of religion.

​We were relieved to hear Gov. Ron DeSantis repudiate the bill introduced in the Florida legislature that would have required bloggers who write about state-elected officials to register with the state government. The bill, which the American Civil Liberties Union says is “un-American to its core,” will not enjoy the governor’s support or signature. What the news giveth with one hand, however, it taketh with the other.
 
The Federal Trade Commission is now demanding that, in the wake of Twitter’s release of data about government coordination with its content management, the company must now “identify all journalists” granted access to company records, including the “nature of access granted each person.” FTC also asked if Twitter had conducted background checks on the journalists, among other things. The Wall Street Journal observed: “So here we have a federal agency demanding that a private company disclose its interactions with a free press, including how much it snooped on those reporters. None of this is the business of the government.”
 
It certainly isn’t the business of the Federal Trade Commission, any more than a blogger in Florida should have to comply with a Republican state senator’s proposal that former House Speaker Newt Gingrich called “insane.”
 
First Amendment, folks. Not that hard.

​If Florida state Sen. Jason Brodeur gets his way, paid bloggers who cover that state’s governor, lieutenant governor, cabinet, or legislature must register with the state, much as lobbyists do, or face fines that can reach $2,500.
 
“Paid bloggers are lobbyists who write instead of talk,” Brodeur is quoted in floridapolitics.com. “They both are professional electioneers. If lobbyists must register and report, why shouldn’t paid bloggers?”
 
Brodeur’s point seems to be that if the enumerated First Amendment rights of lobbyists (the right to petition the government for a redress of grievances) can be regulated, why can’t we regulate the rights of bloggers (freedom of speech and the press)?
 
If this sounds reasonable on its face, it isn’t when you look at it closely.
 
In Florida, lobbyists are government relations professionals who are paid to visit legislators to present the views of their corporate, union, NGO, or other special-interest employers. The U.S. Supreme Court has held that government can require such lobbyists to register. Other Floridians can write, petition, or go to their legislator’s office, without any registration or restrictions. That’s called democracy.
 
The same freedom applies to bloggers. They don’t show up at the Capitol on a daily basis. They may be paid or unpaid. They may work for the common good or spread disinformation. They may shed light or start fires. They can disrespect, criticize, ridicule, and skewer state officers – including Sen. Jason Brodeur – because, you see, the First Amendment says that Congress shall make no law “abridging the freedom of speech, or of the press.” And more than two centuries of American law makes it clear these principles apply to government at all levels, from Tallahassee, Florida; to Laredo, Texas; to Sacramento, California, where youth sporting groups have had to go to court to defend themselves against a law that degrades both their First and Second Amendment rights.
 
It is easy to see why some people – and politicians – get upset with commentary from the shadier precincts of social media, especially content subsidized by special interests with partisan, ideological, or personal axes to grind. There is no way to stamp this out; however, that doesn’t justify the far worse problem of censorship. The only solution is to marshal facts, be a good communicator, and be vocal in response.
 
Requiring millions of people who blog about state politicians to register or face fines would be an onerous burden on speech. It would subject political speech to regulation, an impulse far too close to practices in Venezuela, Russia, or China for comfort. And yet, there is increasing interest from the right and the left to find new ways to restrict speech.
 
The 11th Circuit Court of Appeals had to strike down Florida’s social media law that would have placed restrictions on how social media platforms can moderate content. “Put simply, with minor exceptions, the government can't tell a private person or entity what to say or how to say it,” said Judge Kevin Newsom, appointed by President Trump. A court had to hold up several provisions of a Florida law that would have attempted to fine-tune academic speech.
 
Many people agree when you complain that the media and the academy have become unfair or increasingly one-sided. But passing one poorly-crafted, unconstitutional messaging bill after another won’t change anything.
 
Should this bill become law, expect mass civil disobedience from bloggers, including from us. If Florida wants to reduce criticism in the blogosphere, we suggest refraining from proposing and passing unconstitutional laws. That would do more good than trying to regulate free speech. 

​In a significant victory for the First Amendment, the U.S. District Court for the Southern District of New York issued a preliminary injunction against a misguided New York law targeting online speech. The lawsuit challenging the law was brought by constitutional law professor and Protect The 1st Senior Legal Advisor Eugene Volokh, and online platforms Rumble and Locals, which filed an amicus brief arguing that the law was unconstitutional. The group was represented by the Foundation for Individual Rights and Expression (FIRE). The court's decision is a clear recognition of the First Amendment and a win for the plaintiffs, who argued the law's vague definition of "hateful" speech would have a chilling effect on First Amendment rights.
 
The plaintiffs argued that the law, which required the removal of “hateful” posts, violated the First Amendment by imposing a content-based restriction on speech without a compelling government interest. The court noted that the law's definition of "hateful" speech was too broad and could encompass a wide range of protected speech, including political speech and satire.
 
The court also found that the law's requirement that online platforms remove "hateful" speech within 24 hours of receiving a complaint would be difficult to comply with and could lead to the removal of lawful speech. The court concluded that the plaintiffs were likely to succeed on their First Amendment claim and that the public interest favored an injunction.
 
"New York's vague and overbroad law sought to stifle robust debate on the internet," said FIRE attorney Daniel Ortner in a press release. "Today's decision is a victory for the First Amendment that should be celebrated by everyone who hopes to see the internet continue as a place where even difficult and contentious issues can be debated and discussed freely."

​Jack Phillips, the owner of Masterpiece Cakeshop, who famously refused to bake a cake for a same-sex wedding in 2012 and sparked a lawsuit that led all the way to the U.S. Supreme Court, is back in court again. This time, he is being sued for refusing to bake a birthday cake celebrating a gender transition.
 
On January 26, the Colorado Court of Appeals ruled that Jack Phillips violated Autumn Scardina's rights by denying her service because of her identity as a transgender woman. The Court of Appeals affirmed a lower trial court decision by holding that Phillips violated state anti-discrimination law by not making a cake to celebrate a gender transition. This most recent decision mirrors the trajectory of Masterpiece Cakeshop v. Colorado Civil Rights Commission, which Phillips also lost in both the trial court and the Court of Appeals. When the Supreme Court heard it, the Justices issued a 7-2 opinion that found for Phillips, though on the narrow grounds that the state commission had not employed religious neutrality.
 
In this latest case, the court in Colorado held that refusing “the act of baking a pink cake with blue frosting,” two of the colors of the Transgender Pride flag, “does not constitute protected speech under the First Amendment.”
 
Scardina attempted to order her cake on the same day in 2017 that the Supreme Court announced it would hear Phillips’ appeal in the wedding cake case. Scardina first filed a complaint against Phillips with the state and the civil rights commission, which found probable cause that Phillips had discriminated against her. During the trial, Scardina testified that she wanted to “challenge the veracity” of Phillips’ statements that he would serve LGBTQ customers. In response, Phillips filed a federal lawsuit against Colorado, accusing it of a “crusade to crush” him.
 
In March 2019, lawyers for the state and Phillips agreed to drop both cases under a settlement. Scardina was not a party to that settlement and chose to pursue the lawsuit against Phillips and Masterpiece on her own.
 
In its most recent decision, the Court of Appeals found that Colorado’s anti-discrimination law – which makes it illegal to refuse to provide services to people based on protected characteristics like race, religion, or sexual orientation – does not violate the right of business owners to practice or express their religion. Phillips and his lawyers have declared their intent to appeal.
 
It would be wrong to allow denial of services against Americans based on sexual orientation. That rule, however, should grant reasonable and narrow exceptions for services that engage the artistic and creative talents of a photographer, a portrait painter, a website designer, or a craftsman who makes cakes with messages.
 
Autonomy over what a person produces, including the message conveyed by the product, are a critical component of free expression. As with the pending 303 Creative case before the Supreme Court, the key issue is whether people in an expressive business have the right to decline to engage their creativity in the service of a message that violates their cherished religious beliefs.
 
* * *

Along these lines, we’d like to report some good news at Yale Law School. Last March, a progressive atheist and a conservative Christian were harassed by an ugly protest over a – get this – panel discussion about free speech. Kristen Waggoner, who heads Alliance Defending Freedom, a conservative Christian advocacy group, had her presentation repeatedly interrupted by more than 100 protestors.
 
The reputational damage to the school was intense, with federal Judge James Ho in September announcing he would not consider Yale law graduates for clerkships. In September, Eugene Volokh, Protect The 1st Senior Legal Advisor, suggested that Yale could undo much of the damage to its reputation by inviting Waggoner back to speak “and not have to leave the building with a police escort – or even leave having had a pleasant experience.”
 
If so, “that would go a long way toward showing an improved intellectual environment at Yale.”
 
In late January, Waggoner was invited to return to Yale, along with the ever-engaging Nadine Strossen, former ACLU president and professor at New York Law School, and Robert Post of Yale Law. Volokh reports that the discussion went “swimmingly.”
 
Much of the discussion centered around Waggoner’s appearance before the U.S. Supreme Court to discuss none other than 303 Creative. Volokh observes that this case, whichever side you take, is “one of the most interesting, important, and high-profile cases of the current Term, so it’s obvious why a law student group might want to host an event with one of the lawyers who argued it.”
 
Commenting on this favorable development, Gene Schaerr, Protect The 1st general counsel and a graduate of Yale Law School, observed: “It is heartening to see Yale Law return to collegial debate and discussion.”
 
And it will be fascinating to observe how courts – including the Supreme Court in 303 Creative – parse the rights and responsibilities of people whose mode of work is expressive.

​The media is aflame with stories about the mishandling of classified material by President Joe Biden and former President Donald Trump, with partisans arguing why one or the other is in greater breach of the law. When we look beyond the partisan wrangling, these stories point to the underlying problem of the Espionage Act. Like a deep trawl scraping the ocean floor, the Espionage Act is broad enough to catch almost everything, including the wrong fish.
 
The Espionage Act is the worst kind of law: as vague as it is broad. It weaponizes the tendency of government to put a “classified” stamp on even anodyne material. “No one is ever punished for overclassifying information, yet plenty of people go to prison for disclosing information to journalists that never should have been classified to begin [with],” Trevor Timm, executive director of the Freedom of the Press Foundation, wrote in The Guardian. “Even efforts to reform the secrecy system end up being classified themselves.”
 
The Espionage Act, combined with overclassification, are menaces to the First Amendment. They inhibit the ability of Americans to know what our government is up to, and for whistleblowers to expose wrongdoing hidden behind a classified stamp.
 
President Obama, worried about this tendency of the government to overclassification, in 2009 issued a remedy: Executive Order 13526. This order was meant to stem the tide of classification and prevent government agents from classifying documents “for self-serving reasons or simply to avoid embarrassment.” In the wake of President Obama’s executive order to curb overclassification, the number of U.S. classified government documents rose from almost 55 million to 77.5 million documents in five years. Less than one percent of federal money spent on the classification system is spent on de-classification today.
 
“Tens or hundreds of millions of documents are classified per year,” Timm wrote. “A tiny fraction will ever see the light of day, despite the fact the vast majority never should have been given the ‘secret’ stamp in the first place.”
 
Responses to FOIA requests filed by civil liberties organizations reveal that documents are classified when they shouldn’t have been. Documents are classified at the wrong level. Information is classified for a longer duration than necessary. The government is self-forgiving, allowing itself to be free to make these mistakes, but an American accused under the Espionage Act is apt to get rough treatment and a good stretch in a federal prison.
 
We should remember that the 1917 Espionage Act was the centerpiece of the police state erected by President Woodrow Wilson. Socialist Charles T. Schenck went to prison for violating that law. His crime? He passed out a leaflet opposing America’s military draft during World War One. These outrages against free speech paved the way for the even more draconian anti-speech amendment, the Sedition Act (which, thankfully, Congress repealed).
 
Justice Oliver Wendell Holmes Jr., writing for the majority in the Schenck case, found an exception to the First Amendment. Speech that “creates a clear and present danger” may be prohibited and speakers prosecuted. The blacking out of a wide swath of government activities from public view, and criminalizing discussion about those activities, remains a disturbing exception to the First Amendment.
 
Whatever your opinions concerning the current and former presidents, the breadth of this law in enforcing an overclassification system run amok is a sure sign that reform is needed. Perhaps it will take two presidents of both parties getting snared in the Espionage Act’s net to spur Congress to pass limits on the classification system, curb the secret state, and address the judicial test that treats some speech as a “clear and present danger.”

​Last year, Attorney General Merrick Garland announced an investigation into whether the Phoenix Police Department “engages in a pattern or practice of violations of the Constitution or federal law.”
 
As if to say, “I resemble that remark,” a Phoenix police officer was recently revealed by local TV news as having handcuffed a Wall Street Journal reporter doing man-on-the-street interviews with customers in front of a bank. “No journalist should ever be detained simply for exercising their First Amendment rights,” The Journal reacted to this event in a public statement.
 
The reporter, Dion Rabouin, was approached by bank executives but was not asked to leave the premises. When confronted by a Phoenix Police officer, Rabouin offered to leave – which was appropriate, given that he was on private property. But Rabouin was handcuffed nevertheless. No less important, a bystander who recorded the incident on a video phone was ordered to stop by the police officer.
 
“You wanna get arrested as well?” the police officer asked.
 
There are several important takeaways from this incident. First, the officer had no authority to tell the bystander to quit filming.
 
Last summer, we reported on Arizona’s space-squeezer law on citizens’ right to record the police. The law was an Arizona statute that allowed police to charge citizens who record them within eight feet, or who don’t stop recording when told to do so by an officer, with a misdemeanor. News organizations protested that this prohibition would easily dragoon protestors and news photographers on the move in an active protest.
 
But later in the year, a federal judge blocked the law, and the Arizona legislature declined to defend it. The arrest of the reporter that was recorded by the bystander demonstrates the need to respect citizens’ right to record. 
 
Second, this incident is Exhibit A in a pattern identified by the Reporters Committee for Freedom of the Press that there is an “alarming number of incidents we’ve seen over the last several years where police have detained, arrested, or assaulted journalists who were doing their jobs.” Witness the treatment of local Laredo, Texas, news blogger Priscilla Villarreal (aka “La Gordiloca”), who was arrested and humiliated in a police station for “misuse of official information.” Villarreal did beat the rap in court, but she did not beat the ride, enduring jeers and insults as she went through the booking process.
 
The Freedom of the Press Association recently reported that two North Carolina reporters who were filming an eviction of people from a homeless encampment were arrested after police instructed the crowd to disperse. Police seized one of the reporters’ phone, even though she identified herself as a reporter.
 
“Regardless of the outcome, the fact that these charges were even filed, let alone brought to trial, is an affront to press freedoms, and everyone involved should be ashamed,” wrote Seth Stern of the Freedom of the Press Association. “The First Amendment requires the government to let reporters gather news firsthand – not rely on self-serving spin from official sources. Courts tolerate restrictions on reporters’ access to public land only in exceptional circumstances, like serious public safety risks, and then restrictions must be narrow enough to avoid unduly interfering with newsgathering.”
 
In the DOJ’s Arizona investigation, the department says it is interested in investigating the Phoenix PD for violating “conduct protected by the First Amendment.” The Phoenix New Times – a long-time critic and bête noir of the local police – reports that DOJ may be interested in exploring overly aggressive use of rubber bullets and tear-gas against protestors, as well as the alleged targeting of activists for arrest and smearing them as gang members.
 
These concerns should lead Congress to renew and pass the PRESS Act, which would bar prosecutors, except in exigent circumstances, from requiring the revelation of the notes and sources of journalists in court – as 49 states already do. While this law curbs the actions of prosecutors, not police, and does so in court, not on the streets, the impulse of authorities to suppress the press is the same. So is the need to protect one of the most sacred guarantees of the First Amendment: freedom of the press.