Rabbi Mier Soloveichik has a touching piece in The Wall Street Journal about an Israeli women, Agam Berger, 20, who during her long imprisonment by Hamas refrained from engaging in any activities on Saturday that would violate the Sabbath. Journalists reported: “Thus when ‘Hamas terrorists ordered Agam to cook food … she steadfastly refused.’ Another hostage, Liri Albag, 20, reportedly described how Ms. Berger refrained from eating nonkosher meat throughout her time in captivity, which doubtless involved enormous sacrifice.” Such religious persecution has happened throughout history to people of every faith. This story got us to thinking of the sacrifices of such faithful, from the abolitionists and underground railroad volunteers to the heroes and martyrs of the civil rights movement. These stories make us think of Dietrich Bonhoeffer and Dr. Martin Luther King Jr. writing to the world from their jail cells. We applaud the courage of such people and are amazed by the steadfastness of their conviction. But governments, regimes, and terrorists should not be allowed to exact such costs on people of faith, even if brave ones like Agam rise to the challenge. We cannot tolerate power that forces such people into making these brave choices. In a better world, Dietrich Bonhoffer would have continued to write theology. Rev. King should have enjoyed a long and happy life as a minister tending to his Atlanta congregation. Such stories reinforce our appreciation for the First Amendment’s protection of the free exercise of religion. And they inspire us to work harder with our civil liberties colleagues to ensure that in America, at least, people won’t have to pay a severe price for living out their faith. St. Isidore of Seville Catholic Virtual School v. Drummond The Supreme Court on Friday agreed to hear St. Isidore of Seville Catholic Virtual School v. Drummond to determine whether it violates the Free Exercise Clause to deny state funds to an online Catholic school solely because of their religious character. This is the latest in a string of cases in which the Court has had to push back on states’ unequal treatment of religious schools. It is also an opportunity to functionally invalidate the unconstitutional Blaine Amendments that litter many state constitutions. Above all, it is a chance for parents to reaffirm their right to choose schools that align with their values. The Oklahoma Supreme Court ordered the state’s Charter School Board to rescind a contract with the Archdiocese of Oklahoma City and the Diocese of Tulsa to establish St. Isidore of Seville Catholic Virtual School. According to the court, the Board’s approval of public funding for a sectarian school violated the Oklahoma Constitution, the Oklahoma Charter Schools Act, and the Establishment Clause. As we wrote at the time, the opinion is “buttoned down, logical, and eminently overturnable,” relying on “that state’s version of a Blaine Amendment, a movement that gathered momentum when American politics was infected with anti-Catholic bigotry.” Blaine Amendments in 37 states prohibit public funding for schools run by religious organizations. They were passed in an era when Catholics faced wanton discrimination in a largely Protestant America. Doubts as to their unconstitutionality were raised by the Supreme Court’s ruling in Espinoza v. Montana (2020), which found that state-based scholarship programs providing public funds for students to attend private schools cannot discriminate against religious schools under the First Amendment’s Free Exercise Clause. The Court, quite specifically, took the Blaine Amendments to the woodshed, writing that they were “born of bigotry.” Congress should end the revolving door of state defiance of clear judicial precedent by overriding the Blaine Amendments and reiterating that Espinoza and the similarly reasoned Carson v. Makin meant what they said and remain the law. The Court has plenty of reasons to overturn the Oklahoma ruling. Oklahoma Justice Dana Kuehn’s dissenting opinion spells them out: “St. Isidore would not become a ‘state actor’ merely by contracting with the State to provide a choice in educational opportunities. By allowing St. Isidore to operate a virtual charter school, the State would not be establishing, aiding, or favoring any particular religious organization. To the contrary: Excluding private entities from contracting for functions, based solely on religious affiliation, would violate the Free Exercise Clause of the First Amendment to the United States Constitution.” Further, Judge Kuehn wrote: “Contracting with a private entity that has religious affiliations, by itself, does not establish a State religion, nor does it favor one religion over another. Allowing St. Isidore to operate a charter school does not give it any preference over any other qualified entity, sectarian or otherwise.” The Constitution’s prohibition of an established religion does not diminish the free exercise of religion. Religious schools must be free to apply for state funding to the extent that they meet mandated standards in English, math, history, science, and other subjects. Such allowances, in turn, will give more parents the opportunity to choose schools that reflect their values, the ultimate expression of the First Amendment. We agree with Gov. Kevin Stitt, who said: “This stands to be one of the most significant religious and education freedom decisions in our lifetime. I believe our nation’s highest court will agree that denying St. Isidore’s charter based solely on its religious affiliation is flat-out unconstitutional.” Stay tuned. Dad’s Place of Bryan, Ohio, v. City of Bryan The city of Bryan, Ohio, last week successfully prosecuted a local pastor for keeping the doors of his church open for the homeless overnight during minus-5-degree weather. The guilty party is Pastor Chris Avell of Dad’s Place, a church that offers free haircuts and a “warming center” in cold weather for homeless people. The city conducted seven surprise fire-code inspections of the church, before leveling 18 criminal charges against the pastor in a local court. With help from the First Liberty Institute, Pastor Avell is appealing to the federal Sixth Circuit, which has issued a stay. In a filing, Avell describes rough treatment by the city. He learned about the charges against him from a local newspaper. Bryan officials chose to serve the criminal complaints against the pastor in front of his congregation on a Sunday morning just before services began. The city’s case is not without substantive claims. The city charges Dad’s Place with violating municipal fire and safety codes, including blocked exits, electrical outlets that need to be reinstalled, and a lack of a fire suppression system. Defenders of Dad’s Place say that the church in the town center has been targeted and harassed to enforce a widespread not-in-my-back-yard attitude toward the homeless. “Only government officials could say with a straight face that people are safer in the sub-zero temperatures on the street than inside the warmth of a church,” said Ryan Gardner, counsel for First Liberty, which represents Pastor Avell. On the surface, this case appears to be a dispute about enforcing zoning ordinances. But Dad’s Place raises serious issues with the guarantee of free religious exercise under the First Amendment as well as the Ohio Constitution. It also implicates the guarantees of the Religious Land Use and Institutional Persons Act, which among other things mandates strict scrutiny when houses of worship are targeted by zoning laws. Pastor Avell can present a strong case that Dad’s Place is a victim of targeted enforcement of the zoning code and pretextual enforcement of the fire code. But at the core of his case is a lack of appreciation by local and state governments that the charitable function of a church is integral to its practice of religion. In a similar vein, the U.S. Supreme Court is set to decide Catholic Charities v. Wisconsin, in which state bureaucrats decided that charitable activities a diocese has provided for a century to the disabled, the elderly and the poor are not part of the church’s exercise of religion. In Christianity – as in all other major world religions – caring for the outcast, the poor, and the helpless is not a hobby, or a side venture. It is the very practice of – the soul, if you will – of religion. The Sixth Circuit should recognize this. And if it doesn’t, perhaps the Supreme Court will. King Henry II, after having his royal prerogatives blocked time and again by the Archbishop of Canterbury Thomas à Becket, blurted out “will no one rid me of this troublesome priest?” Some Republicans felt the same when President Trump and his family attended an Episcopal service the other day. The president was subjected to a sermon by Bishop Mariann Edgar Budde of Washington, D.C., who appealed to the new president to “have mercy on the people who are scared now,” including immigrants, refugees, and sexual minorities. President Trump himself took it all in stride (and with a comeback tweet or two). This was all in keeping for a president who had just decisively defended free speech in his inaugural address and then bolstered it hours later with an executive order. But at least one prominent critic of Bishop Budde had a different response. He asked that the bishop be put on the “deportation list.” It would be right and fair to come back at the bishop with some substantive riposte, as the president did. But the Right Rev. Budde, as an American citizen born in New Jersey, cannot – and must not – ever be considered for deportation because of how she chooses to exercise her First Amendment rights. For an American citizen, a threat of deportation is never a good joke. Critics should keep in mind that overreaction tends to valorize rather than intimidate. After King Henry’s call, several followers overreacted to the king’s frustration by drawing their swords and killing Archbishop Becket at the altar. This, of course, led to Becket becoming a saint. Becket’s Survey Shows Highest Level Ever for Religious Liberty Today we celebrate Religious Freedom Day, 2025, the anniversary of The Virginia Statute for Religious Freedom, Thomas Jefferson’s model for the First Amendment’s guarantee of the “free exercise” of religion. In our era, the danger to religious liberty comes not from those who would establish a theocracy for their denomination or religion, but from those who would use state power to scale back the right of Americans to engage in the free exercise of their beliefs. We should heed the words of Jefferson, who as governor of Virginia disestablished the Church of England as his state’s “official” church and granted religious freedom to all Virginians. Jefferson’s proclamation denounces: “The impious presumption of legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible and uninspired men have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible[.]” The U.S. Supreme Court is currently weighing whether to hear cases on the religious liberty rights of Americans at the hands of just such fallible civil officials. One case under consideration is Mahmoud v. Taylor, which concerns the rights of parents in Montgomery County, Maryland, to opt their children out of teachings about sexuality contrary to their religion. Another case, Apache Stronghold v. United States, seeks protection for the long-recognized sacred site of the Apaches in Arizona whose very existence is under threat by a mining company more concerned about profit than about the Apaches’ religious beliefs. Courts have also had to deal with the state of Maine, which continues to defy the plain language of Supreme Court precedent by isolating and defunding religious schools. Every year on this day, the Becket Fund for Religious Liberty releases its “Religious Freedom Index,” assessing the degree to which religious liberty is respected nationally. The news here is heartening. While bureaucrats and officials try to narrow the scope of religious liberty, a solid and growing majority of Americans understand and support religious liberty for all. In 2024, Becket’s index, based on 21 questions put to a representative sample of 1,000 Americans, revealed its highest level of support for religious freedom ever. Becket’s findings include the following:
Most interesting of all, even Gen Z’s support for religious freedom is growing. Becket’s survey also finds that a plurality of Americans looks first to the courts to safeguard religious freedom over state governments, Congress, and even the president. This confidence will only be bolstered if the U.S. Supreme Court decides to take up both Mahmoud and Apache. As Thomas Jefferson put it, “Truth is great, and will prevail if left to herself.” Protect The 1st has followed the Catholic Charities v. Wisconsin litigation for more than two years. After many ups and downs in a case that asks what constitutes an activity deemed sufficiently religious to merit a state religious exemption, the U.S. Supreme Court has agreed to rule on the controversy. Courts in Wisconsin have found that the Catholic Charities Bureau of Wisconsin does not qualify for a state religious exemption and must therefore contribute to the state’s unemployment system, instead of to a church-run system. Wisconsin courts base this conclusion on the flawed reasoning that Catholic Charities – which has provided aid to the disabled, the elderly, and the poor for over one hundred years – is not operated primarily for religious purposes because it provides services to people of all faiths. Never mind the fact that, quoting the Becket Fund, “[the] requirement to serve everyone in need comes directly from Catholic social teaching and advances the Church’s religious mission through the corporal works of mercy.” No activity violates the Establishment Clause more than one in which the government decides which religious practices qualify as religious, and hence protected, and which do not. Moreover, it’s simply bad policy to punish a group that offers free in-home health care, housing, and childcare services to people in need. Then there’s the floodgates ramifications; if it does indeed become the job of government to decide which religious practices are religious, then we well and truly have cast the Constitution to the wind. The Catholics suffer now, but many other religious groups may soon find themselves at the pointy end of a bureaucratic spear. Becket Fund senior counsel Eric Rassbach perhaps puts it best: “Wisconsin is trying to make sure no good deed goes unpunished. Penalizing Catholic Charities for serving Catholics and non-Catholics alike is ridiculous and wrong. We are confident the Supreme Court will reject the Wisconsin Supreme Court’s absurd ruling.” For more on the Catholic Charities case, you can read their certiorari petition here. Stay tuned for updates from Protect The 1st. Mendham Methodist Church v. Morris County, New Jersey A recent federal court ruling in New Jersey finds, once again, in favor of the free exercise of religion, inspiring us to ask the question: Why are state and local governments so perversely keen to ignore the Constitution and governing precedents? Morris County, New Jersey – like many jurisdictions – runs a historic preservation grant program. For 14 years (2003 – 2017), buildings of a religious nature were eligible for funding. Then, in 2018, the New Jersey Supreme Court found in Freedom from Religion Foundation v. Morris County Bd. of Chosen Freeholders that the state constitution’s Religious Aid Clause “bars the use of taxpayer funds to repair and restore churches.” At the same time, the court held that the rule did not violate the Free Exercise Clause of the Constitution because, in their estimation, the then-recent case of Trinity Lutheran Church of Columbia, Inc. v. Comer distinguished between religious status and religious use. In other words, the court said that government funding could go to a religious organization so long as the recipient was not using the money for religious purposes. Since then, Supreme Court precedent has evolved quite a bit. In Espinoza v. Montana Department of Revenue and Carson v. Makin, the Court flatly found that “a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.” That didn’t stop Morris County from denying Mendham Methodist Church and Zion Lutheran Church Long Valley historic preservation grants. Now, after the two churches brought suit, a federal court has ruled in their favor, citing (unsurprisingly) Espinoza and Carson. In the opinion by Judge Evelyn Padin, which invokes similar controversies in other states, she eloquently makes the point that: “Recent Supreme Court precedent, therefore, characterizes many states’ disentanglement of government and religion as a Faustian bargain: to gain public benefits, you must forgo your faith. But the bargain depends on the bargainer. So, too, could the calculus read: to benefit from the results of public funding, you must endorse a faith to which you do not belong.” That faith, it is implied, may be of the secular variety. But Espinoza and Carson make this whole calculus surprisingly clear. You cannot discriminate or withhold public funds based on an organization’s religious character. The only question that remains – will some states and local governments now follow the law? Of all the things Americans expressed thanks for last Thursday, Protect The 1st is so grateful for the First Amendment that we adopted it as our namesake. The First Amendment in the Bill of Rights is a simple guarantee of our constitutional right to speak freely, enshrined in our written constitution. It provides a bulwark against the encroaching tide of censorship that has eroded free expression in other countries. The importance of a written guarantee of free speech is demonstrated in the alarming decline of free speech in Anglophone countries, long seen as bastions of liberty, that lack such a constitutional guarantee. Recent examples from the United Kingdom, Canada, and Australia underscore the importance of this uniquely American right. The United Kingdom, the birthplace and champion of free speech, has increasingly succumbed to policing and punishing speech deemed offensive. Its 1986 Public Order Act made it a criminal offense to use “threatening, abusive, or insulting” words that might cause someone “harassment, alarm, or distress.” While the law’s language seems aimed at curbing harm, it effectively outlawed the mere act of offending someone. This led to absurd prosecutions, such as a man arrested for calling a police horse “gay” and a teenager detained for labeling Scientology a cult. These cases illustrate how the power to define “insult” can be wielded arbitrarily, stifling legitimate expression. More recently, the UK has seen the rise of "non-crime hate incidents," where individuals are investigated for actions or speech perceived as offensive but not criminal. These incidents are recorded by the police and can affect individuals’ records, impacting their job prospects and social standing. For example, Essex Police investigated journalist Allison Pearson in 2024 over a year-old social media post allegedly inciting racial hatred. Although no charges were filed, the investigation drew backlash and raised concerns about the chilling effect of such probes on free expression. Peaceful personal actions have also come under scrutiny. In 2024, Army veteran Adam Smith-Connor was convicted for silently praying outside an abortion clinic in Bournemouth. Despite the deeply personal nature of his prayer, he was ordered to pay significant prosecution costs. Similarly, Isabel Vaughan-Spruce was arrested in 2022 for silently praying near an abortion clinic in Birmingham, allegedly violating a local “buffer zone” order. Although she was later acquitted, her case sparked widespread concern over the criminalization of private thought and peaceful expression. Canada, too, has seen troubling encroachments on free speech. The country’s human rights commissions have famously prosecuted individuals for “hate speech” under laws that are broad and subjective. One high-profile example involved comedian Mike Ward, who faced years of legal battles and was fined for making a joke about a disabled public figure. Such cases illustrate how speech, particularly humor (admittedly offensive) and dissenting opinions, can be punished when legal protections are weak or absent. The mere existence of these tribunals demonstrates a willingness to prioritize “dignity” over free expression, a choice that would be untenable under the First Amendment. In Australia, free speech has also come under threat. In 2019, that country’s High Court upheld the dismissal of a public servant who criticized government policies anonymously on social media. The court ruled that such comments breached the Australian Public Service Code of Conduct, highlighting the limited protections for free speech, especially for government employees. These examples from countries that share the common law tradition reveal a stark contrast. Britian gave us foundational texts like John Milton’s Areopagitica, a powerful argument for the liberty of unlicensed printing. Canada, with its Charter of Rights and Freedoms, has nevertheless allowed subjective interpretations of “hate speech” to override open debate. Australia, lacking a constitutional free speech guarantee, has seen judicial decisions that limit public discourse. By comparison, the United States’ written Constitution, fortified by a judiciary that has generally stood firm in defense of free speech, has proven to be a fortress against these trends. Americans benefit from a legal framework that assumes offensive speech is not a bug but a feature of free expression. The U.S. Supreme Court has consistently upheld this principle, most notably in cases like Brandenburg v. Ohio, which protects even inflammatory speech unless it incites imminent lawless action. This robust protection enables a marketplace of ideas where good and bad arguments alike are subject to public scrutiny, not state suppression. The comedian Rowan Atkinson of Mr. Bean fame has eloquently defended free speech, calling it “the most precious thing in life.” He warned that outlawing insult empowers orthodoxy to silence dissent and argued that “more speech” is the strongest weapon against hateful ideas. As we eat the last of our Thanksgiving leftovers, let us give thanks for the First Amendment, which guards the liberty to speak, argue, and dissent without fear. It is a fortress that protects us all. The decision by the Texas State Board of Education to offer the optional Bluebonnet curriculum, rich in Christian imagery and tropes, is a kind of Rorschach test. Those more sensitive to the “no establishment” clause of the First Amendment see it as foisting one religion on an increasingly diverse population of students. Those who relish the “free exercise” clause see it as exposing all children to common cultural touchstones in what was until recently an overwhelmingly Christian nation. Religion has undeniably shaped American society, from the Puritans’ foundational settlements to the Great Awakening’s moral fervor and the influence of Presbyterianism on the structure of the U.S. Constitution. In the 19th and 20th centuries, churches played key roles in the abolitionist and civil rights movements. Including the lore of these movements in history classes enriches students’ understanding of the nation’s development and diverse social fabric. “In my view, these stories are on the education side and are establishing cultural literacy,” said Will Hickman, a Republican who sits on the Texas Board of Education told The Texas Tribune. He has a point. Common phrases like “pearls before swine,” “turn the other cheek,” and “salt of the earth,” are sayings of Jesus that have become cultural bywords in ordinary American conversation. More difficult questions arise when religious content goes beyond lessons about history and literature. One Bluebonnet lesson about fairness, for example, includes the story of The Good Samaritan, Jesus’ parable about helping people across barriers of background and religion. That story too is an important part of American moral culture. But some Jewish, Muslim, Sikh, and Hindu parents might see such moral parables not as helping everyone share a common culture, but as an effort by conservative Christians to keep Christianity at the center of American identity. It’s the kind of issue that deserves to be discussed among all concerned stakeholders, at the local level, with people on all sides doing their best to understand others’ concerns and to develop approaches that are as inclusive as possible and that avoid unnecessary offense to their neighbors’ sensibilities. Wherever one comes down in that debate, one inclusive, and therefore laudable, approach to religious expression is to expand school choice, which Texas is ready to embrace. Following the recent election, the Texas legislature now has a majority prepared to implement a universal school voucher program for the nation’s second most populous state. Such a program would give parents the freedom to select schools that align with their values, whether they seek religious or secular instruction. Gov. Greg Abbott is championing this initiative, recognizing the growing demand for educational options. The foundation for this shift was laid by the U.S. Supreme Court’s 2022 decision in Carson v. Makin. The Court ruled that if a state offers funding to private secular schools, it cannot exclude religious schools. This principle ensures families can choose schools – religious or secular – that best meet their needs. In Texas, vouchers will allow children to attend quality private schools as long as they meet state standards in core subjects like science, civics, and math. Religious schools, unlike public institutions, can easily integrate faith-based teachings into their curricula. Without generating internal controversy, for example, they may display and teach such things as the Ten Commandments as part of their broader mission. Far from undermining pluralism, this model respects it, allowing families to pursue education aligned with their beliefs while maintaining accountability to state standards in key subjects. This seems to us the better way to respect both diversity and the maximum freedom of expression under the First Amendment, and in so doing allowing parents to share their values – religious or not – across generations. In a 3-0 decision, the Ninth Circuit Court of Appeals ruled today that California is violating the law by discriminating against religious parents and children in special-education programs. That this ruling was needed at all in Loffman v. California Department of Education is remarkable. From Maine to California, states keep trying to isolate and defund private schools that are religious in character. Federal appellate courts have been consistent in laying down the law in upholding the First Amendment’s protection of “free exercise of religion.” California, which channels funds from the federal Individuals with Disabilities Act (IDEA), allows children with disabilities to receive a free appropriate education that meets their needs. The California Legislature, however, added a condition – that special education program funds could not be distributed to schools that also have a religious character. This precluded Jewish parents from choosing an Orthodox Jewish school for their disabled children. California has the option of appealing to the U.S. Supreme Court, but that is unlikely to be successful. All of the precedents cited by Judges Kim Wardlaw, Morgan Christen, and Mark Bennett cited Supreme Court precedents that supported their ruling that California’s “nonsectarian requirement fails the neutrality test” in the treatment of religious schools. “Today’s ruling is a tremendous victory for the Becket law firm, which stood by these Jewish parents through a long and difficult case,” said Gene Schaerr, general counsel of Protect The 1st. “This victory is also one more sign, if any were needed, that the First Amendment requires the neutral and fair treatment of religious schools. Equitable treatment of religious schools is the law of the land. It is long past time for some states to end their campaign of resistance to this clear application of constitutional principle.” The nation’s two presidential candidates sometimes seem at a loss to understand or appreciate the First Amendment, which protects religious expression and freedom of the press, among other forms of speech. Case in point: when Vice President Kamala Harris was asked this week in an NBC interview if she would support a religious exemption for physicians on abortion, she flatly rejected any such “concession.” The Democratic nominee for president spoke about the “basic freedom” of a woman to control her own body, while rejecting the idea that a physician in a white surgical gown should have control over the actions of his or her own hands. Let’s be clear what we’re talking about – the Harris position would pull the medical licenses of men and women of faith for declining to personally perform abortions. Never mind that this country has no lack of physicians willing to perform that procedure. Contrast the vice president’s stance with the Democrats of New Mexico, where last year Gov. Michelle Lujan and her fellow Democrats in the legislature took a commendable step to improve a law they championed to make sure it 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. Gov. Lujan and her allies in the New Mexico legislature heard the outcry from physicians of faith and responded with courage to correct their law to observe the religious freedom of expression. Why can’t Harris follow that example? Then there is former President Trump, who has been littering the airwaves with threats to pull the broadcast licenses of ABC and then CBS for disputes over their fact checks and editorial decisions. News flash: Networks don’t have broadcast licenses. Their local affiliates do. News organizations don’t need a “license” to practice journalism. Anyone can do it. Again, it’s called the First Amendment. Contrast the Republican nominee’s frequent threats with those of his Republican predecessors. Presidents Reagan, Bush and Bush complained about media bias, but each of them found artful ways to counter it. The first President Bush forcefully rejected the contentions of CBS’s Dan Rather on air, then the allies of the second President Bush discredited him so badly that Rather eventually resigned from CBS. The presidential father and son did so by exercising their First Amendment rights, without resorting to threats of censorship. Yet listening to our candidates today, we have to ask: is rubbishing the First Amendment the new normal in American presidential politics? At the very least, the current state of the presidential debate points to the urgency of restoring civics education that imparts a classical understanding of our Constitution. Protect The 1st is proud to announce that we have filed an amicus brief with the U.S. Supreme Court in the ongoing Mahmoud v. Taylor case (formerly Mahmoud v. McKnight). Our brief strongly defends the rights of parents to protect their children from mandatory instruction on gender and sexuality that conflicts with their religious beliefs. In collaboration with the Jewish Coalition for Religious Liberty and the Islam and Religious Freedom Action Team, we argue that the imposition of such curriculum without an opt-out provision violates core First Amendment rights. This case presents a fundamental question: can public schools burden parents’ religious exercise by compelling elementary school children to participate in lessons on gender and sexuality without giving families the ability to opt out? The right to direct the upbringing of children has long been established as a cornerstone of American jurisprudence, dating back to Pierce v. Society of Sisters and Wisconsin v. Yoder. Our brief emphasizes that these precedents should apply here, where the state's agenda contradicts parents’ most deeply held convictions. The situation in Montgomery County, Maryland, has sparked outrage among religious communities. What began with the introduction of 22 “LGBTQ+-inclusive” texts has turned into a battleground for parental rights. These texts include material that many families find inappropriate for young children, yet the school district denies any possibility of opting out. The brief highlights that teachers are instructed to tell students that “at birth doctors merely ‘guess about our gender and label us ‘boy’ or ‘girl’ based on our body parts.’” Such teachings directly conflict with many faiths, including Christianity, Judaism, and Islam, which hold clear beliefs about sexuality and gender. Our brief warns of the “cataclysmic consequences” that will arise if parents lose the right to teach their children in accordance with their own religious and moral frameworks. The manipulation of a "captive and vulnerable audience"—children in public schools—amounts to an unconstitutional burden on parental rights. No school district has the right to force-feed children views on sexuality and gender that contradict the moral teachings of the home. The stakes are high: this is about more than sex education; it’s about whether the state can undermine the very foundation of moral and religious instruction in the home. The Fourth Circuit’s decision to deny that a religious burden exists in these circumstances shows a troubling trend. Similar rulings in multiple circuits leave millions of parents without protection against forced instruction on sensitive matters like gender and sexuality. Religious families are left with no choice but to tolerate indoctrination, pay for private school, homeschool their children, or risk legal penalties. We are asking the Supreme Court to correct this error and restore the constitutional protections that prevent the state from intruding on the family’s role in educating children. Our work in this case is part of a broader effort to safeguard First Amendment freedoms for all. Whether Muslim, Jewish, Christian, or non-religious, parents should have the right to determine the values their children are exposed to—particularly on issues as contentious as sexuality and gender. As our brief concludes, "the time to decide the question presented—and thereby prevent these harms—is now." PT1st looks forward to further developments in this case. The U.S. House recently passed the End Woke Higher Education Act. This bill, part of the GOP’s broader push against ideological bias, aims to limit increasingly Orwellian Diversity, Equity, and Inclusion (DEI) control over speech and hiring in higher education. It passed by a 213-201 vote and now faces a tough battle in the Democratic-controlled Senate.
This bill would regulate the role accrediting bodies play in determining whether colleges qualify for federal funding. Currently, accrediting organizations often require institutions to align with certain DEI initiatives to maintain their status. The End Woke Act would block these requirements, ensuring that schools don’t have to adhere to any political or ideological viewpoint to stay accredited. We ask: Why should private accrediting bodies have such influence over public funding in the first place? Accreditation has become a bureaucratic tool, often favoring particular ideologies. The government should not outsource funding decisions to external organizations, much like courts and legislatures should not be beholden to the advice of the private American Bar Association. The bill also incorporates the Respecting the First Amendment on Campus Act, which takes cues from the University of Chicago’s 2014 principles on free speech. These principles emphasize that universities should be arenas for open debate, where no idea is off-limits, even if offensive to some. This legislation would require colleges to disclose their free speech policies and ensure students and faculty are aware of their rights to free expression. However, we must also be cautious about how such attempts to liberate speech can wind up restricting it. Florida’s Stop WOKE Act is an example of how well-intentioned laws can overreach. Its broad restrictions on how race and gender can be taught in higher education have made professors afraid to even discuss certain topics. This same chilling effect could result from overly detailed regulations in the End Woke Act. This bill commendably opposes political litmus tests in hiring and promotion. In recent years, some colleges have required applicants to submit statements affirming their commitment to DEI as part of the hiring process. The result is that faculties in the humanities are monolithically left-wing. The bill seeks to ban such requirements, arguing that they suppress intellectual diversity. Protect The 1st agrees. Whether someone supports or opposes DEI or any other political or partisan stance should not determine their eligibility for academic positions. Any ban on litmus tests, however, that restricts the free associational choices of private colleges and universities, as opposed to public institutions, undermines rather than promotes First Amendment rights. This is true even if it is done in the name of promoting First Amendment values. A private Catholic university should have the right to hire faculty who uphold its religious values. Similarly, a private liberal arts college committed to the Constitution, or a private sustainability-focused institution, may want professors who actively promote these ideals. There is little overlap between the communities of Hillsdale and Oberlin colleges. This bill could prevent such schools from ensuring faculty align with their institutional identities and core missions. This last point gets to a serious shortcoming in this legislation. It uses access to federal funds to impose these rules on private universities and colleges as well as public ones. Those who want to use these strings to outlaw “woke” instruction in private institutions of higher learning are paving the way for government to dictate instruction of all kinds, including religious schools. If this approach were to become law, you shouldn’t be surprised if some future administration tells a Catholic college that its teachings on traditional marriage or abortion are not allowed. Once you meddle with speech, you create a weapon that can be pointed in any direction. We applaud the thrust of this bill – absurd ideological demands, like requiring DEI statements, are anathema to academic freedom. However, there has to be a better way to restore ideological diversity to the academy than to give the government the power to approve curricula and compel instruction at private universities. We urge the bill’s authors to return with a more targeted approach to opening public institutions of higher learning to true intellectual openness and vigorous debate on wide-ranging ideas. The First Amendment ratified first for a reason. The founders recognized that the right to speak, free of government interference, is the foundational rule of a democracy. Before anything else, free speech is the one principle that all Americans should know – and cherish – by heart.
That many Americans don’t understand the First Amendment is regrettably not surprising, given the erosion of what used to be called civics education in our public schools. What is shocking is how America’s political leaders – tasked with defending the Constitution – are showing a lack of basic understanding of the First Amendment. In the vice-presidential candidates’ debate, Gov. Tim Walz told his opponent Sen. J.D. Vance: “You can’t yell ‘fire’ in a crowded theater. That’s the test. That’s the Supreme Court test.” Too bad J.D. Vance, Yale Law School graduate, didn’t take the opportunity to correct this widespread misperception. Gov. Walz’s reference came from an opinion written by Justice Oliver Wendell Holmes in Schenck v. United States, which upheld the conviction of one Charles Schenck under the Espionage Act for distributing flyers appealing to draft age men to resist induction into World War One. Justice Holmes upheld the man’s conviction. In peacetime, Holmes wrote, such criticism can be allowed. In wartime, however, criticizing the government of the United States is akin to his metaphor of “falsely shouting fire in a theater.” (Popular imagination later added “crowded” to this quote. Sixties activist Abbie Hoffman offered his own memorable twist, defining free speech as having the right to “shout ‘theater’ in a crowded fire.”) Thus, Justice Holmes declared, opposition to America’s war effort justified “a clear and present danger” test for speech. Schenck went to prison and criticism of the war became a crime. Gov. Walz seems unaware that in 1969 the Supreme Court in Brandenburg v. Ohio overturned this “clear and present danger” test. It narrowed the exception to language meant only to direct or incite “imminent lawless action.” The Brandenburg standard protects all speech – even what any fair person would call “hate speech” – so long as it does not call for imminent violence. Another remark from John Kerry, former U.S. Senator and Secretary of State, also garnered a lot of criticism about the need to “curb” some media entities. He told an audience at the World Economic Forum: “But look, if people only go to one source, and the source they go to is sick, and, you know, has an agenda, and they’re putting out disinformation, our First Amendment stands as a major block to the ability to be able to just, you know, hammer that out of existence.” Some have defended Kerry by saying he was merely explaining to an audience with foreigners that the First Amendment prevents the government from blocking disinformation, in this instance about climate change. TechDirt’s Mike Masnick writes: “He appears to be explaining reality to a questioner from the audience who wants to suppress speech.” Perhaps. But then Kerry immediately pivoted to the need to “win the ground, win the right to govern, by hopefully winning enough votes that you’re free to implement change.” What else could that mean but a landslide election that could justify government “hammering” unapproved speech out of existence? Finally, there is Donald Trump. In the recent presidential debate, ABC News factchecked Trump, but not Vice President Harris. Still, Trump’s response to this biased treatment gives us pause. Donald Trump said of ABC News: “To be honest, they’re a news organization – they have to be licensed to do it. They ought to take away their license for the way they did that.” No, no and no. No, you don’t have to have a license to be a news organization. All you need is a printing press or a broadcast studio. No, ABC News does not need a broadcast license – the FCC grants those to local stations, not to networks. And no, you cannot punish a news organization for legal content. Politicians of all stripes need to understand that biased reporting, hateful comments, and “disinformation” are all protected speech. There is no “they” who can take away someone’s license to speak. And any attempt to regulate social media content that is or is not “disinformation” is to inevitably create a Ministry of Truth. The generous space the First Amendment leaves for speech still allows laws that curb incitement to violence, defamation, false advertisement, and obscenity. For almost two and half centuries, Americans have left it to juries to decide such cases within strict guidelines. Let’s leave it that way. In the meantime, perhaps all candidates for federal office would do well to check out this excellent video from Publius No. 86. The Customs and Border Patrol (CBP) has little respect for the Fourth Amendment. From international airports to border stations, Americans returning from abroad often fall prey to the routine CBP practice of scanning their laptops, mobile phones, and other digital devices without a warrant.
As if that were not enough, CBP also scans people’s faith, violating their First Amendment rights as well. Consider the case of Hassan Shibly, a U.S. citizen and student at the University of Buffalo Law School. When he returned to the United States in 2010 with his wife, a lawful permanent resident, and their seven-month-old son, from a religious pilgrimage and family visit in the Middle East, Shibly was taken aside by CBP agents. A CBP officer asked him: “Do you visit any Islamist extremist websites?” And: “Are you part of any Islamic tribes?” And then the kicker: “How many gods or prophets do you believe in?” Other returning Muslim-Americans are interrogated about the mosques they attend, their religious beliefs, and their opinions about the U.S. invasion of Iraq and support for Israel. One New Jerseyan, Lawrence Ho, attended a conference in Canada and returned to the United States by car. He was asked: “When did you convert?” Ho does not know how the agent knew he had converted to Islam. A group of Muslim-Americans, fed up by this treatment, are now being represented by the American Civil Liberties Union in a suit before the Ninth Circuit Court of Appeals against CBP for civil rights violations. The plaintiffs are correct that subjecting Americans to deep questions about their faith – as a condition to reentry to their home – violates their First Amendment rights, as well as the Religious Freedom Restoration Act (RFRA). Ashley Gorski, senior staff attorney with ACLU’s National Security Project, said that “this religious questioning is demeaning, intrusive, and unconstitutional. We’re fighting for our clients’ rights to be treated equally and to practice their faith without undue government scrutiny.” To be fair, CBP has its work cut out for it when it comes to screening the border for potential terrorists. And we should not avert our eyes to the fact that there are sick and dangerous ideologies at work around the world. But we are also fairly confident that actual terrorists would not be stumped by the kind of naïve and unlawful interrogations CBP has imposed on these returning Americans. Heavy-handed questions about adherence to one of the great world religions doesn’t seem to be a useful security strategy or a demonstration that our government is familiar with its own Constitution. A troubling update in Mahmoud v. Montgomery highlights the continued disregard for parental rights and religious freedom as Montgomery County Public Schools (MCPS) in Maryland persists in refusing to allow religious parents an opt-out for their children being exposed to sexually charged materials. Recent statements from school board members during public meetings reveal personal hostility toward the religious traditions of many parents.
In one striking exchange, Board Member Lynne Harris dismissed a parent’s objections to forced participation in the curriculum, saying the parent’s position was ‘just telling that kid, ‘here's another reason to hate another person.’” Couldn’t a dismissive statement like that count as “another reason to hate another person?” This kind of rhetoric doesn't just shut down dialogue – it delegitimizes parents’ deeply held religious values. Even more egregious was Harris’s comment to a Muslim student who voiced her discomfort with the LGBTQIA+ content for conflicting with her faith. Harris said she “felt kind of sorry” for the student and went so far as to speculate whether she was “parroting [the] dogma” of her parents. The disdainful tone and dismissal of a young student's sincere religious beliefs underscore the problem – MCPS is not merely advocating for inclusivity. It is actively marginalizing the religious convictions of those who dissent from its progressive agenda. Beyond the disrespectful treatment of religious families at these meetings, MCPS also took actions that restrict open participation in the democratic process. When Foldi v. Montgomery County plaintiffs Matthew Foldi and Bethany Mandel, who write on education issues, sought to attend the June 27th school board meeting to cover and protest the curriculum, they were turned away. Foldi, a journalist, was barred from entry despite identifying himself as a reporter. Denying media access to a public meeting where major decisions were being made, including the denial of parental opt-out requests, raises serious First Amendment concerns. Such restrictions erode the public’s trust in the transparency of their government institutions. No less troubling is MCPS's action toward dissenters in the digital space. In the lead-up to the June 27th meeting, Mandel was blocked from the “@MCPS-StaffPRIDE” social media account, which had been used to share content and events related to instruction on sexuality. Blocking Mandel from viewing or engaging with the account, which is run by staff linked to the school, prevented her from participating in public discourse around the very topics the school board was debating. A Maryland judge upheld the right of the school district to exclude Foldi and Mandel from the meeting, since they had missed a sign-in cutoff. Such a rule was permitted since it was viewpoint neutral. But the court found MCPS was in error when it blocked them from an official social media account. Protect The 1st Legal Advisor Eugene Volokh observes: “The Supreme Court's Lindke v. Freed decision held that individual officeholders sometimes act in their private capacities when maintaining a social media page, and thus aren't constrained by the First Amendment in deciding whom to block from that page. But it left unaffected the lower court cases that have held that when government bodies maintain social media pages, they are indeed constrained by the First Amendment and may not block readers and commenters based on viewpoint.” There is a troubling pattern of disregard for the First Amendment within MCPS. No one is trying to cancel its educational materials. The issue is that religious families are being denied an opt-out option for highly sexualized material. This infringement is made worse by a broader silencing of dissent, in person and online. At the heart of this story is the right of parents to weigh in on how education impacts their religious traditions, as well as the right of citizens to speak out on matters of public concern. MCPS’s actions, both in its meetings and online, reflect a broader pattern of encroachment on First Amendment rights that should alarm everyone, regardless of their views on the underlying issues. Protect The 1st will continue to monitor this story. Peaceful protesters from Arizona’s Apache Stronghold held a day of prayer outside the U.S. Supreme Court last week. In their quest to preserve the centerpiece of their faith from utter destruction, the Apache certainly deserve our prayers. But they also deserve our amicus briefs, for the Almighty helps those who help themselves.
The Apache and other Native peoples led the way by asking the Supreme Court to protect their sacred land and – by extension – the sacred lands and landmarks of Jews, Christians, Muslims, and all Americans of faith. That is why Sikhs, Muslims, the Mennonite Church, other tribes, and the Christian Legal Society have filed briefs supporting Apache Stronghold. For centuries, the Apache have held sacred a site in the Tonto National Forest in Arizona they call Chí’chil Biłdagoteel, known colloquially as Oak Flat. Though under management by the U.S. Forest Service, Oak Flat has for centuries been recognized as the central location for the Apache’s religious worship – a place where they honor their ancestors, hold ceremonies, and mediate their relationship with the Creator. It’s their Mount Sinai, Temple Mount, and Vatican. After the discovery of copper beneath and around the site, Congress in an 11th hour deal transferred Oak Flat to Resolution Copper, a foreign mining company. The Apache and their allies (including us) are now engaged in a legal struggle to prevent Resolution Copper from transforming the site into a crater as deep as the Washington Monument. The Apache have demonstrated that the federal government’s conveyance of their sacred land constitutes a violation of the Religious Freedom Restoration Act. Yet the Ninth Circuit Court of Appeals – usually not known for indifference to minority rights – sided with the mining company and the government in a 6-5 decision. The court’s reasoning is self-contradicting. The Ninth agreed that the land’s disposition to Revolution Copper will categorically prevent the Apache from participating in any worship at Oak Flat because their religious site will be obliterated. Yet the court found that the land transfer would not constitute a “substantial burden” on religion because that standard does not apply in instances of “the Government’s management of its own land and internal affairs.” These rulings ignore both the recognition of Oak Flat as the sacred land of the Apache in treaties going back to the 19th century and is an absurdly narrow reading of constitutes a substantial burden on the free exercise of religion. The Apache’s petition identifies the circuit split that only the Supreme Court can resolve: “This remarkable result openly conflicts with RFRA’s text, which expressly applies to all Federal law and ‘the use … of real property for the purpose of religious exercise’ – with no carveout for government property.” Further, the appellate court ruling “conflicts with decisions of the Fourth, Sixth, Seventh, Eighth, Tenth and Eleventh Circuits,” which “have long recognized that the government substantially burdens religious exercise not only by penalizing it but also by preventing it from occurring.” Without intervention from the high court, the government will not only destroy the Apache’s religious heritage but provide a skeleton key for “eviscerating RFRA in any context deemed part of the government’s ‘internal affairs’ – a concept that could cover almost anything the government does.” If you are a person of faith or respect the faiths of others, you have a stake in Oak Flat. Stanford, Penn, and Wisconsin Go Viewpoint Neutral Stanford University, the University of Pennsylvania, and the University of Wisconsin have all embraced a viewpoint neutral stance that refrains from speaking out on the issues of the day. Protect The 1st hopes they will become national trendsetters for higher education.
The pitfalls of the old approach were made clear when the University of Wisconsin-Milwaukee, bedeviled by pro-Palestinian protests, cut a deal to end the protests in May. The administration agreed to consider severing ties with Israeli firms and to put the university’s prestige behind a call for a ceasefire in Gaza. This was only a recent example of how university administrations became opinion factories, spitting out one declaration after another on the issues of the day. For example, the University of Pennsylvania put out a statement denouncing the U.S. Supreme Court’s ruling that overturned Roe v. Wade. Stanford spoke out on Israel and Gaza. The outspokenness of universities to take positions on the crisis of the day was a hard turn from the standards of the 1967 University of Chicago Kalven Report, forged in the crucible of the Vietnam era. The Kalven Report advocated that universities be true to their stance as fora for free speech by refraining from commenting on issues that don’t affect them as institutions. This is partly out of concern for allowing maximum range for free thought and free speech on campus. A professor, after all, might legitimately believe that Israel has the right to prosecute the war against the terrorists of Hamas, or that the Supreme Court’s Dobbs decision was correctly decided. There are costs when universities negate opinions, as they did with their stance on Israel. These costs can be tangible when they offend the sensibilities of donors, as well as lawmakers who approve budgets for public universities. In the case of UW Milwaukee, the administration seemed panicked into trying to appease groups that used force to seize part of the campus. Such appeasement often encourages more pressure, turning the university into a mouthpiece for anyone willing to take over a quad or university building. It is no coincidence that Harry Kalven, who chaired the committee that produced the University of Chicago’s report on university neutrality, also coined the term “heckler’s veto.” Appeasing the most animated and sometimes violent activists on campus with official statements is a guaranteed way to get more of the same. The challenge for universities is to be neutral without seeming heartless. “The neutrality of the university as an institution arises then not from a lack of courage nor out of indifference and insensitivity,” the Kalven Report declared. “It arises out of respect for inquiry and the obligation to cherish a diversity of viewpoints. And this neutrality as an institution has its complement in the fullest freedom for its faculty and students as individuals to participate in political action and social protest.” Here’s a tip for administrators: When a university is confronted with the next burning moral question, the best answer – after making clear that the university is a neutral forum – is have at the ready a list of professors and student groups willing to speak to the media. Let the university community speak out on the issues of the day. And let them disagree. Maine is openly defying the U.S. Supreme Court’s ruling in Carson v. Makin by forcing religious schools to comply with a state antidiscrimination law in order to receive state tuition funds. This action directly contradicts and attempts to nullify the Supreme Court's decision that states cannot exclude religious schools from publicly available tuition assistance programs solely because they are religious.
The Supreme Court’s ruling in Carson v. Makin, which Protect The 1st supported with an amicus brief, was a significant win for religious liberty. The Court decided that Maine's exclusion of religious schools from its tuition assistance program violated the Free Exercise Clause of the First Amendment. The decision followed precedents like Trinity Lutheran Church of Columbia, Inc. v. Comer and Espinoza v. Montana Department of Revenue, which established that states cannot discriminate against religious entities in public benefit programs. Despite these clear directives, Maine lawmakers amended state laws to impose new conditions that effectively continue the exclusion of religious schools. Maine now requires all schools participating in the tuition program to comply with the Maine Human Rights Act. For many religious schools, these requirements conflict with their traditional religious beliefs about sexuality, making participation impossible. Maine’s actions are a clear attempt to sidestep the Supreme Court's decision by creating a new set of rules specifically targeting religious institutions. By imposing conditions that contradict the faith of religious schools, the state seeks to maintain their exclusion from public funding, which undermines the constitutional mandate. Two lawsuits have already been filed challenging Maine's new rules, arguing that the state’s policy violates constitutional rights. The cases, brought by Crosspoint Church in Bangor and the Roman Catholic Diocese of Portland, highlight the ongoing conflict between state law and the Supreme Court’s ruling. The plaintiffs argue that Maine's policy is designed to discriminate against religious schools. The state's resistance goes beyond policy disagreement: It attacks the very principle of religious liberty. By enforcing a policy already struck down by the Supreme Court, Maine penalizes religious exercise and undermines parents' rights to choose a religious education for their children. This act of government overreach must be addressed to uphold constitutional rights. Maine’s defiance also puts it at odds with the supremacy of the federal government and the Supreme Court – a principle that many young men from Maine gave their lives to uphold. States cannot be permitted to nullify federal law through legal maneuvering. Courts must ensure that the rights guaranteed by the Constitution are respected. Maine’s defiance must be corrected to prevent further erosion of religious freedom. Ninth Circuit Stands Firm in Protecting Federal Funding for Religious Educational Institutions9/12/2024
Can students who vehemently object to the religious beliefs of a religious college force that college to accept them and their beliefs? Would doing so be a blow for personal liberty, or a way to use the power of the law to force religious institutions to change their doctrine?
The Ninth Circuit considered these questions and came down hard on the side of religious liberty by affirming a lower court’s dismissal of just such a case. At the center of that case is Title IX, the landmark civil rights law passed in 1972 that prohibits discrimination “on the basis of sex” at any educational institution that receives federal funding. A longstanding religious exemption, however, makes an exception for any school that is “controlled by a religious organization” and where “the application of [Title IX] would not be consistent with the religious tenets of such organization.” In Hunter v. Department of Education, 33 LGBTQ+ students who applied to religious educational institutions, or attended such a school, brought suit against the government alleging that they experienced discrimination on the basis of their sexuality or gender identity. This may have seemed like a slam dunk. Some courts, the Ninth Circuit included, have interpreted Title IX’s prohibitions to also include discrimination based on such factors in addition to traditional understandings of biological sex. The plaintiffs argued that Title IX’s religious exemption violates the First Amendment’s Establishment Clause as well as the Equal Protection Clause of the Fifth Amendment. In effect, they sought to prevent the future use of federal financial assistance (such as tuition grants and student loans) at religious schools that operate in accordance with their traditional beliefs on gender and sexuality. In parsing the establishment claim, the court applied 2022’s Kennedy v. Bremerton precedent, which set forth a “historical practices” test in determining whether government action inappropriately assists religion in violation of the Establishment Clause. Writing for the court, Ninth Circuit Judge Milan D. Smith reinforced the basic tenets of religious liberty: “First, the history of tax exemptions for religious organizations near the time of the Founding suggests that statutory exemptions that operate as a subsidy to religious institutions do not violate the Establishment Clause according to its original meaning. Second, case law evinces a continuous, century-long practice of governmental accommodations for religion that the Supreme Court and this court have repeatedly accepted as consistent with the Establishment Clause.” In analyzing the equal protection claim, the court found that that the exemption survives all manner of judicial scrutiny because: “[It] substantially relates to the achievement of limiting government interference with the free exercise of religion. The exemption does not give a free pass to discriminate on the basis of sex to every institution; it contains limits that ensure that Title IX is not enforced only where it would create a direct conflict with a religious institution’s exercise of religion.” There is no question that the LGBTQ+ community has faced – and continues to face – harmful and insidious discrimination on many fronts. But preventing students from accessing desperately needed financial resources to attend educational institutions whose teachings align with their sincerely held religious beliefs is not an appropriate means of redress. The First Amendment to the Constitution exists in large part to protect the free exercise of religion – even when a religious organization’s teachings may offend one’s sensibilities. To do otherwise would be to use the power of the government to forcibly change religious dogma, a recipe for unending social strife and culture war. The best solution for the plaintiffs is to attend the one of the vast majority of schools that hold no such religious dogma. Protect The 1st served in an advisory capacity on this case, and we celebrate this win for religious freedom. At the same time, we recognize that we must remain ever vigilant in seeking to strike an appropriate balance between religious freedom and equality – both of which are of critical importance to a free and functioning republic. Earlier we compared the First Amendment records of Sen. J.D. Vance and Gov. Tim Walz, finding the two vice presidential candidates problematic with notable bright spots.
So how do the two candidates at the top of the ticket compare on defending speech? Answer: Even more problematic, but also with some bright spots. Vice President Kamala Harris As a U.S. Senator, Harris in 2017 co-sponsored an amendment with her fellow Californian and leading Democrat, the late Sen. Dianne Feinstein, that would have required federal agencies to obtain a probable cause warrant before the FISA Court could allow the government to review the contents of Americans’ emails. Protecting Americans from warrantless surveillance of their private communications concerning personal, political, and religious lives is one of the best ways to protect speech. As a senator, Harris also defended the First Amendment rights of social media platforms to moderate their content. This is not surprising given that she was from California and big tech is one of her best backers. The Washington Post reports that Karen Dunn, one of Google’s top attorneys in against the Biden administration’s antitrust case, is a top Harris advisor. This closeness suggests a danger that a Harris administration might lean heavily in support of using friendly relations with big tech as a backdoor way to censor critics and conservative speech. Consider that Harris once called for the cancellation of former President Donald Trump’s then-Twitter account, saying: “And the bottom line is that you can’t say that you have one rule for Facebook and you have a different rule for Twitter. The same rule has to apply, which is that there has to be a responsibility that is placed on these social media sites to understand their power … They are speaking to millions of people without any level of oversight or regulation. And that has to stop.” Why does it have to stop? Americans have spoken for two centuries without any level of oversight or regulation. You might find the speech of many to be vile, unhinged, hateful, or radical. But unless it calls for violence, or is obscene, it is protected by the First Amendment. When, exactly, did liberals lose their faith in the American people and replace it with a new faith in the regulation of speech? Worse, as California Attorney General, Harris got the ball rolling on trying to force nonprofits to turn over their federal IRS Form 990 Schedule B, which would have given her office the identities of donors. Under Harris’s successor, this case went to the U.S. Supreme Court. Protect The 1st was proud to submit an amicus brief, joined with amici from a coalition of groups from across the ideological spectrum. We demonstrated that the likely exposure of donors’ identities would result in various forms of “cancellation,” from firings and the destruction of businesses, to actual physical threats. A Supreme Court majority agreed with us in Americans for Prosperity Foundation v. Bonta in 2021 that the same principle that defended Alabama donors to the NAACP extends to all nonprofits. The Biden-Harris administration has also been mum on worldwide crackdowns on speech, from a Brazilian Supreme Court Justice’s cancellation of X, to hints from the French government that this U.S.-based platform might be the next target after the arrest of Telegram CEO Pavel Durov. Former President Donald Trump This is a harder one to judge. It’s long been said that Donald Trump wears better if you turn the sound off. On the plus side, President Trump took a notably strong approach in supporting surveillance reform. A victim himself of illicit surveillance justified by the FBI before the FISA Court with a doctored political dossier and a forged document, President Trump was sensitive to the First Amendment implications of an overweening surveillance state. To his credit, he nixed the reauthorization of one surveillance authority – Section 215, or the so-called “business records provision.” During the pandemic, Trump issued guidance in defense of religious liberty. He said: “Some governors have deemed liquor stores and abortion clinics essential but have left out churches and houses of worship. It’s not right. So I’m correcting this injustice and calling houses of worship essential.” He backed up his defense of religious liberty by appointing three Supreme Court Justices – Neil Gorsuch, Amy Coney Barrett, and Brett Kavanaugh – who have been strong defenders of religious liberty. But turn the sound back on and you will hear Donald Trump call the American press “the enemy of the people.” Call the media biased, corrupt, in the bag for the Democrats, whatever you like … but “enemy of the people?” Trump’s rhetoric on the media often edges toward physical hostility. As president, he mocked a CNN reporter who was hit with a rubber bullet while covering the 2020 riots in Minneapolis. “Remember that beautiful sight?” Trump asked. At a time when journalists are under threat in America and around the world, this is a decidedly un-American way to confront media bias. Donald Trump has also called for a loosening of the libel laws to allow elected officials to more easily pursue claims against journalists without having to meet the Supreme Court’s “actual malice” standard. We agree that there is room for sharpening libel law in the age of social media amplification, but allowing wealthy politicians to sue news outlets out of business would be one effective way to gut the First Amendment. So what should we conclude? Both Harris and Trump have mixed records. Both have taken bold stands for speech. Both have treated the opposition as so evil that they do not deserve legal protections. Both seem capable of surprising us, either by being more prone to censorship or to taking bold stands for free speech. Whatever your political leanings, urge your candidate and your party to lean on the side of the First Amendment. The resignation of Minouche Shafik as president of Columbia University closes the tumultuous months since the congressional hearing that has now led to the resignations of three Ivy League presidents. Many conservatives, led by Rep. Elise Stefanik, accused Shafik of foot-dragging in her response to violent campus protests.
But there is much more to this story. And it is not what many conservatives think. Inside Higher Education reports that the real catalyst for Shafik’s resignation was not timidity in the protection of free speech. It was a faculty backlash over Shafik’s recent conciliatory remarks before Congress and her eventual crackdown on students violently occupying buildings. In doing so, Shafik upheld the rule of law and the openness of the Columbia campus to all but was condemned by those prioritizing ideological conformity over free speech. The irony here is stark. The very people who purport to defend free speech have effectively silenced a university president for enforcing the law in defense of free speech. This contradiction is reminiscent of the twisted logic that characterized the 1960s Berkeley “Free Speech” Movement. Originally, this movement began as a fight for the rights of students to engage in political activities on campus. But the Free Speech Movement quickly turned to speech coercion. Today, Columbia’s situation shows how this mentality has morphed into a bizarre inversion of free speech principles. Apostates are silenced or threatened. Physical intimidation and the disruption of university operations – effectively silencing the speech and association rights of the many in the service of the few – are now tolerated or even celebrated as legitimate forms of expression. This shift is not just confined to Columbia. Universities, once bastions of free inquiry, are now becoming environments where only certain viewpoints are deemed acceptable. This creates a chilling effect, where students and faculty may feel pressured to conform to prevailing ideologies or risk facing social or professional consequences. The very essence of academic freedom – exploring, challenging, and debating diverse perspectives – is being eroded in favor of a narrow, ideologically driven discourse. This troubling development reflects the growing influence of Herbert Marcuse’s “Repressive Tolerance,” an essay that has increasingly shaped contemporary academic thought. Marcuse argued that true tolerance should not be extended to ideas or actions that reinforce the status quo, and that society must suppress regressive elements to allow for progressive change. The forced resignation of Shafik appears to be a real-world application of this philosophy. “I am still an employee of Columbia University, and she’s not,” one faculty member crowed on X. By ousting a leader who defended law and order, as well as the proper functioning of the university, Columbia’s faculty has, in effect, endorsed a selective approach to free speech – one that tolerates only those forms of expression that align with their ideological preferences. Shafik’s subtly forced departure represents a loss for the fundamental principles of free expression and academic freedom. The fact that she was pressured to leave for doing the right thing – cracking down on students breaking the law – shows how far the academy has strayed from its commitment to open discourse. Her departure is not a victory for free speech. It is a clear manifestation of the Orwellian doublethink that now pervades higher education. Question: Should Colorado’s universal preschool program include Catholic schools that impart religious instruction?
Answer: From a practical (and moral) standpoint, the answer must be “yes.” Catholic schools fulfill a vital charitable role within their communities that includes notably effective education. Many of the families Catholic schools serve are of limited means. Twenty percent of families who send their children to preschools in the Archdiocese of Denver qualify for the free and reduced-price school meals program. At Denver’s St. Bernadette’s parish preschool, that number of low-income needy is 85 percent of the congregation. At St. Mary’s preschool, more than one-quarter of families receive scholarships or discounts. Yet a Colorado federal district court endorsed Colorado’s exclusion of these preschools. This controversy is essentially political. The Archdiocese of Denver does not wish to allow same-sex couples to join their congregation. Colorado does not like that – and many of us feel the same. But traditional marriage – whatever you think of it – is a central tenet of the Catholic faith. Protect The 1st stands firmly against discrimination in all its forms. We see no contradiction in supporting the Supreme Court’s Obergefell acceptance of same-sex marriage and supporting the Roman Catholic Church’s right to define its faith. The Church’s dogmas are a constitutionally protected prerogative. Yet Colorado categorically denied the Archdiocese of Denver’s request to access public funding while trying to rhetorically maintain their First Amendment right to cultivate their own congregation. In an amicus brief before the Tenth Circuit Court of Appeals, Protect The 1st explains what’s wrong with the lower-court ruling. We told the Tenth Circuit: “… Colorado has violated Plaintiffs’ expressive association rights … Whatever one may think about same-sex relationships or gender transitions – and PT1st does not oppose them – a religious institution has a constitutional right to decide whom to admit into its communities, and cannot be excluded from a publicly-available benefit program for making those religion-based choices.” When this case is heard by the Tenth Circuit, that court will have ample precedent to stand for the full expression of the First Amendment. We’ve already heard a lot of rowdy speech from the two vice-presidential candidates, Democratic Minnesota Gov. Tim Walz and Republican U.S. Sen. J.D. Vance. Would they be as generous in applying the First Amendment to others as they do to themselves?
Tim Walz, who, despite correct opinions regarding the tragedy of Warren Zevon being left out of the Rock and Roll Hall of Fame, hasn’t been as on the money when it comes to which types of speech are protected and which are not. In 2022, Walz said on MSNBC: “There's no guarantee to free speech on misinformation or hate speech, and especially around our democracy. Tell the truth, where the voting places are, who can vote, who's able to be there….” As PT1st senior legal advisor Eugene Volokh points out in Reason: “Walz was quite wrong in saying that ‘There's no guarantee to free speech’ as to ‘hate speech.’ The Supreme Court has made clear that there is no ‘hate speech’ exception to the First Amendment (and see here for more details). The First Amendment generally protects the views that the government would label ‘hateful’ as much as it protects other views.” Legal treatment of misinformation is more complicated. In United States v. Alvarez, the Supreme Court held that lies “about philosophy, religion, history, the social sciences, the arts, and the like” are largely constitutionally protected. Libel, generally, is not – though, in a defamation case, a public official can only succeed in their claim if they can show that a false statement was published with “actual malice” – in other words, “with knowledge that it was false or with reckless disregard of whether it was false or not.” Categories of intentional misinformation that are patently not protected include lying to government investigators and fraudulent charitable fundraising. Walz may be on firmer ground when it comes to lies about the mechanics of voting – when, where, and how to vote. Thirteen states already ban such statements. As Volokh writes, “[I]f limited to the context that Walz seemed to have been describing – in the Court's words, ‘messages intended to mislead voters about voting requirements and procedures’ – Walz may well be correct.” On freedom of religion, Walz’s record as governor is concerning. During the pandemic lockdowns, the governor imposed particularly harsh restrictions on religious gatherings, limiting places of worship to a maximum of ten congregants, while allowing retailers to open up at 50 percent capacity. An ensuing lawsuit, which Walz lost, resulted in an agreement granting religious institutions parity with secular businesses. Walz also signed a law prohibiting colleges and universities that require a statement of faith from participating in a state program allowing high school students to earn college credits. As the bill’s sponsor conceded, the legislation was intended in part to coerce religious educational institutions into admitting students regardless of their beliefs – diluting their freedom of association. That controversy is currently being litigated in court. Little wonder the Catholic League declared that “Tim Walz is no friend of religious liberty.” The Knights of Columbus might agree – at least as pertains to the broader ticket. In 2018, during the federal judicial nomination hearing for Brian Buescher, then-Sen. Kamala Harris criticized the organization for its “extremist” (read: traditional) views on social issues. Harris also sponsored the “Do No Harm” Act, which would have required health care workers to perform abortions in violation of their religious beliefs. Regarding Vance, the former Silicon Valley investor is hostile to the speech rights of private tech companies (who certainly enjoy the same First Amendment protections as any other person or group). In March, the senator filed an amicus brief in support of the State of Ohio’s lawsuit against Google, which seeks to regulate the company as a common carrier. In his brief, Vance argues Google’s claim that it creates bespoke, curated search results that directly conflict with its past claims of neutrality. Sen. Vance writes: “[Google’s] functions are essentially the same as any communications network: it connects people by transmitting their words and exchanging their messages. It functions just like an old telephone switchboard, but rather than connect people with cables and electromagnetic circuits, Google uses indices created through data analysis. As such, common carrier regulation is appropriate under Ohio law.” Vance’s argument creeps in the direction of Texas and Florida laws that seek to regulate social media companies’ internal curation policies. Both laws were found wanting by the Supreme Court. The Court in a strongly worded remand on both laws wrote: “[I]t is no job for government to decide what counts as the right balance of private expression – to ‘un-bias’ what it thinks is biased, rather than to leave such judgments to speakers and their audiences.” Yet Vance also attempts to “un-bias” social media platforms, leaving little to no room for independent curatorial judgment. On the plus side, Vance has cosponsored numerous bills aimed at curtailing government censorship, including the “Free Speech Protection Act,” which prohibits government officials from “directing online platforms to censor any speech that is protected by the First Amendment.” He also sponsored the PRESERVE Online Speech Act, which would force social media companies to disclose government communications urging the censoring or deplatforming of users. As the election season progresses, we can hope for more clarity on the candidates’ positions regarding our First Amendment freedoms. It is already clear, however, that both candidates are far from purists when it comes to protecting other people’s speech. Aristotle wrote that anybody can get angry. The hard task is to “be angry with the right person, and to the right degree, and at the right time, and for the right purpose.”
We don’t know if Judge Mark Scarsi of the U.S. District Court for the Central District of California is a student of Aristotle. But when he issued a preliminary injunction on Tuesday ordering UCLA to not allow parts of its campus to be off-limits to Jewish students, his order came out hot. Judge Scarsi wrote: “In the year 2024, in the United States of America, in the State of California, in the City of Los Angeles, Jewish students were excluded from portions of the UCLA campus because they refused to denounce their faith. This fact is so unimaginable and so abhorrent to our constitutional guarantee of religious freedom that it bears repeating. Jewish students were excluded from portions of the UCLA campus because they refused to denounce their faith.” The plaintiffs in the case are Jewish students who have a religious belief about the importance of the State of Israel. Several students, under threat of violence, were barred from the path to UCLA’s Powell Library. Others could not access the university’s Royce Quad because to do so they would either have to denounce their faith or meet those who promised violence. As the judge notes, UCLA does not dispute these facts. Instead, it argues that it has no responsibility to protect the religious freedom of its Jewish students because the exclusion was engineered by a third party, in this case student and off-campus protesters angry about the tragedy in Gaza. Judge Scarsi responds: “But under constitutional principles, UCLA may not allow services to some students when UCLA knows that other students are excluded on religious grounds, regardless of who engineered the exclusion.” A preliminary injunction is usually a tell about where a court is going. In this case, it is more like a bullhorn. |
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