​When Rights Have No Remedy

A right without a remedy is no right at all. That is why Protect The 1st is disappointed that the U.S. Supreme Court last week did not uphold the right of a Rastafarian prison inmate to seek damages after Louisiana prison officials forcibly shaved off his dreadlocks.

The Religious Land Use and Institutionalized Persons Act (RLUIPA), shorn of such a remedy, will now offer less than full protection for profound violations of the free exercise of religion for people of all faiths – Jews, Muslims, Christians, Sikhs, and others.

“Looking at the broader defense of religious freedom, however, PT1st remains optimistic,” said Gene Schaerr, PT1st general counsel. “Today’s opinion is unfortunate, but this Supreme Court has been the strongest ever in supporting the free exercise of religion. Protect The 1st looks forward to advancing the cause of religious freedom in future cases.”

Prison officials threw the law into a trash bin

The case arose from the experience of Damon Landor, a devout Rastafarian who had grown his dreadlocks for nearly two decades as an expression of his faith. After being transferred to a different Louisiana prison only weeks before his release, Landor explained that his religion prohibited him from cutting his hair. He even presented prison officials with documentation showing that courts had already recognized his right to maintain his dreadlocks under RLUIPA.

Instead, officers threw the court decision into the trash, restrained Landor in a chair, and forcibly shaved his head. 

Turning the law into an unenforceable “parchment promise”

When the Supreme Court agreed to hear the case, Protect The 1st noted that RLUIPA was enacted to ensure that incarcerated Americans do not surrender their religious liberty at the prison gate. Congress recognized that prisoners are uniquely vulnerable to arbitrary government action and therefore provided robust protection for their sincerely held religious beliefs.

The issue before the Court was whether those protections include the ability to recover damages from officials who knowingly violate the law. Without that remedy, many violations will never receive meaningful judicial review. Sometimes, prisoners’ rights are violated before courts can issue injunctions, leaving no practical consequence for officials who disregard religious rights. That, of course, is what happened to Landor. And, as we warned when the Court accepted this case, legal protections risk becoming little more than a “parchment promise” if they cannot be enforced retroactively through monetary relief. 

The Court has now concluded that RLUIPA does not authorize damages against individual state officials. As a practical matter, that means many future victims of similar violations will have little recourse once the immediate injury has passed. 

Yet this decision should not obscure the larger trajectory of religious liberty at the Supreme Court. Over the last decade, the Court has repeatedly reaffirmed that government must respect the free exercise of religion, whether the claimant is a church, a religious school, a family-owned business, or an individual seeking to live according to conscience.
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Protect The 1st will continue advocating for Americans of every faith and no faith to ensure that the First Amendment’s promise of religious liberty remains meaningful. Even after this setback, we remain hopeful that the cause of religious freedom is moving forward, one case at a time.

The current U.S. Supreme Court has been one of the strongest in history in protecting First Amendment rights. That is one reason for concern about calls for packing the Court growing among Democratic politicians. They seek to add another four Justices for a total of 13, overwhelming the conservative-leaning Supreme Court led by Chief Justice John Roberts.

There is more at stake here than political score-settling. In a frenzy to reverse the precedents of the Roberts Court, an expanded majority could unnecessarily reverse the Court’s protection of First Amendment rights. We’ll look at those issues in a moment. But first, we should take stock of the true character of this Court.

The Roberts Court Is Not a Rubberstamp for Trump or the Right

Rep. Jamie Raskin, Ranking Member of the House Judiciary Committee, recently charged that the Roberts Court is “robotically loyal” to President Trump and is radically revising law to fit a right-wing agenda.

It is true that this Court struck down Roe v. Wade in Dobbs v. Jackson Women’s Health Organization (2022), sending the issue of abortion back to the voters in every state. But a majority during Roberts’ tenure also voted to make the legality of same-sex marriage the law throughout the land. Roberts himself voted against the majority in that case, but sided with the majority in extending Title VII’s protections against discrimination to gay, lesbian, and transgender people.

The Roberts Court – often joined by some of President Trump’s own nominees – has also ruled against Republican or conservative interests in several hotly contested cases.

One such recent example was the Court’s decision striking down most of the tariffs imposed by President Trump. And don’t forget the Court’s earlier decision in NFIB v. Sebelius (2012) upholding the “individual mandate” that was the heart of Obamacare.

But the true hallmark of the Roberts Court has been a scrupulous defense of speech, as well as the religious rights of individuals and groups that hold viewpoints at odds with the accepted orthodoxy of many officials.

Upholding Speech Rights

The Citizens United V. FEC (2010) decision struck down limits on independent political expenditures, finding that restrictions on independent campaigns are restrictions on speech. The Roberts Court struck down laws that criminalized the creation, sale, and possession of depictions of animal cruelty in United States v. Stevens (2010). The Court also outlawed viewpoint discrimination in government-issued trademarks in Matal v. Tam (2017).

Most recently, the Court 8-1 in favor of the speech rights of a therapist in Colorado who discussed conversion therapy with minors in Chiles v. Salazar (2026). In a concurrence joined by Justice Sonia Sotomayor, Justice Elena Kagan wrote that when a state suppresses “one side of a debate while aiding the other, the constitutional issue is straightforward.”

Striking Down Compelled Speech

On the issue of compelled speech, the Court in Americans for Prosperity v. Bonta (2021) struck down a California requirement that non-profits disclose their major donors, harking back to a principle from NAACP v. Alabama (1958): that anonymity protects donors from persecution – and today, from doxing.

In 303 Creative LLC v. Elenis (2023), the Court held that Colorado could not compel creators in expressive activity – in this case, a website designer – to craft messages that violate their religious or artistic convictions.

Upholding the Free Exercise of Religion

The Court also stoutly defends religious liberty – a key component of the First Amendment – ruling in Espinoza v. Montana Department of Revenue (2020) and Carson v. Makin (2022) that states must give religious schools equal access to otherwise universally available public funds and programs.

In the workplace, the Roberts Court protected the personal, midfield prayers of a high school football coach in Kennedy v. Bremerton School District (2022). Within faith organizations, the Court also prevented government from interfering with the employment decisions of religious institutions regarding their clergy.

In Little Sisters of the Poor v. Pennsylvania (2020) and similar cases, the Court recognized the right of Catholic nuns not to be forced by federal mandates to provide abortifacients and contraceptive coverage to employees in violation of their faith tradition.

There are many more such cases. Most of them involved government mandates that targeted people who hold minority views, or beliefs that are rejected by political elites in many states. In one case, the Court defended the speech rights of the Westboro Baptist Church, a hate group that strives to be as shocking, provocative, and reprehensible as possible. The Court has stood up for outsiders to mainstream culture, ranging from animal rights activists to nuns.

You may agree with, disagree with, or detest some of the viewpoints in these cases. But we are lucky to have a Court that understands that viewpoint discrimination by government is always the greater danger. Respect for the speech rights of the few is the best way to protect the speech rights of all.

Packing the Supreme Court could well bring in a majority that feels it has a mandate to reverse any and all of these cases.
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To learn more about the politics, policy, and law behind court-packing, watch  (starting at the 55-minute mark) or read the testimony of PT1st’s general counsel, Gene Schaerr, before the House Judiciary Committee.​

​The First Amendment protects far more than freedom of the press. It protects the right of Americans to speak, associate, worship, petition the government, and express political views without fear that the government is secretly monitoring their activities.

Yet those freedoms are increasingly threatened by the government's growing reliance on administrative subpoenas – demands for records issued by executive branch agencies without prior approval from a judge.

Unlike traditional warrants, administrative subpoenas often allow agencies to obtain sensitive information without demonstrating probable cause or convincing a court that the request is justified. As Sen. Cynthia Lummis (R-WY) put it:

“Americans’ constitutional rights should not disappear just because they made a phone call or sent a text. Yet today, federal agencies can secretly demand your phone records and personal data from tech companies as often as they want without ever stepping inside a courtroom.”

The danger is not limited to privacy. It strikes at the heart of First Amendment freedoms.

Consider what modern communications records can reveal. Phone logs, text messages, email metadata, web browsing records, social media activity, and app usage can expose a person's political affiliations, religious beliefs, advocacy activities, friendships, and associations. Such records can reveal who attends a protest, communicates with a political campaign, seeks counseling from a religious leader, participates in a grassroots movement, or belongs to an unpopular organization.

The Supreme Court has long recognized that compelled disclosure of associations can chill free expression. Americans are less likely to speak freely, join controversial causes, or engage in political activism if they believe the government can secretly assemble a detailed picture of their activities without meaningful judicial oversight.

The risks are especially acute in an era when so much speech occurs through digital communications. A subpoena directed at a technology company can reveal not only what people say, but also who they communicate with, what they read, what videos they watch, and what causes they support.

Journalists are not the primary victims of this authority, but their experience illustrates how easily government access to records can chill protected expression.

Recent controversies involving government efforts to obtain reporters' records – including, most recently, subpoenas directed at reporters for The Wall Street Journal – have highlighted how authorities can expose confidential sources and chill investigative reporting. The Obama administration and the current Trump administration have used subpoenas issued by courts or grand juries to probe the notes and phone logs of reporters.

Are administrative subpoenas also being used to investigate journalists? Perhaps the better question is: How would we ever know?

Bob Goodlatte, former Chairman of the House Judiciary Committee and a Senior Policy Advisor to Protect The 1st, aptly described the constitutional problem:

“The very term ‘administrative subpoena’ is an oxymoron that is offensive to the Fourth Amendment. It avoids judicial oversight and gives the executive branch the ability to make legitimate-sounding demands to inspect our houses, papers, effects, and data, when it is in fact just illicit government overreach.”

That is why Protect The 1st endorses the bipartisan Subpoena Abuse Prevention Act, sponsored by Sens. Ron Wyden (D-OR) and Cynthia Lummis (R-WY), along with a bipartisan group of House members.

The legislation would require the government to obtain judicial approval before accessing phone records, require officials to certify under penalty of perjury that subpoenas are not being used to monitor protected speech, and prohibit bulk collection requests, such as demands for records identifying everyone who watched a particular video, visited a website, attended an online event, or downloaded a specific app.

These reforms would restore an essential constitutional safeguard – independent judicial review.

The Founders understood that freedom of speech, religion, the press, and association cannot survive if government officials possess unchecked power to identify critics, monitor dissenters, and map private networks of communication.
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In an age when our political, personal, and religious lives increasingly exist in digital form, Congress should ensure that constitutional rights do not disappear whenever an agency decides to issue a subpoena.

​When the COVID-19 pandemic swept across the nation, employers and governments faced difficult decisions. But difficult circumstances do not erase constitutional principles. That is why Protect The 1st has filed an amicus brief urging the U.S. Supreme Court to hear Petersen v. Snohomish Regional Fire & Rescue, a case involving firefighters who sought religious accommodations from a COVID-19 vaccine mandate. 

At stake is a fundamental First Amendment freedom – the free exercise of religion.

The firefighters in this case did not refuse to work. They sought accommodations that would allow them to continue serving the public while remaining faithful to their sincerely held religious beliefs. For roughly 20 months, the department allowed safety measures such as testing, masking, distancing, and other precautions. Then, despite those accommodations, the firefighters were placed on leave. 
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Protect The 1st’s brief argues that lower courts have drifted away from the Supreme Court’s recent decision in Groff v. DeJoy (2023), which strengthened protections for religious employees under federal law. Under Groff, employers must show that a requested accommodation would impose a substantial burden on their operations. Mere speculation or generalized concerns are not enough. 

That standard matters because the facts surrounding COVID-19 changed rapidly. By the time many vaccine mandates were being enforced, enough Americans had received vaccinations or acquired immunity from prior infection to bend the herd-immunity curve and significantly reduce the risk of catastrophic spread. The nation was no longer in the desperate early days of the pandemic.

Protect The 1st’s brief points to expert testimony showing that vaccinated and unvaccinated individuals could both transmit the virus, that natural immunity provided substantial protection, and that alternative mitigation measures remained available. 

None of this means vaccines lacked value. Millions of Americans chose vaccination, and those decisions helped protect vulnerable populations and reduce severe illness. But the existence of broad public compliance is precisely why reasonable religious accommodations were often possible. When most of a workforce is vaccinated and additional safeguards are available, granting a limited exemption to a small number of religious objectors is far less likely to impose a substantial burden on an employer.

The First Amendment has always protected minority beliefs. Religious liberty would mean little if it applied only when a person’s beliefs aligned with popular opinion or government policy.

The Supreme Court has repeatedly affirmed that government may not treat religious exercise as a second-class right. Whether the issue involves houses of worship, religious schools, or employees seeking accommodations in the workplace, the principle remains the same: Americans should not be forced to choose between their faith and their livelihoods unless the government or employer can demonstrate a truly compelling need.
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Protect The 1st’s brief asks the Court to ensure that religious Americans receive the protections Congress intended and that the Supreme Court recognized in Groff. Emergencies may require extraordinary measures. They do not suspend legal protections for religious liberty.

​Al Gore wrote in 1992 about predictions that within the next few decades “up to 60 percent of the present population of Florida may have to be relocated” due to rising seas caused by global warming.

Kyle Smith, a columnist for The Wall Street Journal, noted that far from shrinking, Florida’s population has grown from 13 million in 1992 to 23 million today. Should Al Gore be liable for a multibillion-dollar judgment in a lawsuit for getting the science wrong?

If the answer is no, then the same principle should apply when states and localities sue fossil fuel companies not merely for what they produce, but for the scientific claims they’ve made about this highly contested issue of global warming.

Others have focused on the issue of whether the city and county of Boulder, Colorado, should be able to launch a lawsuit that effectively drives policy for other states and the nation. Protect The 1st is weighing in with an amicus brief before the U.S. Supreme Court that details the First Amendment principles at stake in Suncor v. Boulder County.

One problem with punishing scientific claims is that the history of science is replete with loudly dismissed claims later proved to be right.

Our brief tells the story of the 19th-century Hungarian physician Ignaz Semmelweis, whose advocacy of handwashing dramatically reduced maternal deaths. But Dr. Semmelweis’s theory was harshly rejected by much of the medical establishment because of its “inclination to adhere to established norms and resist new ideas that challenge them,” a tendency in science now known as the “Semmelweis reflex.” The brief asks readers to imagine a world in which Semmelweis or Joseph Lister, who advanced the understanding of the importance of sterile conditions for surgery, had been sued for questioning the scientific orthodoxy of their times.

Our brief tells the Court that “if history teaches anything, it is that today’s consensus may be tomorrow’s cautionary tale.”

While the Suncor case is often framed as a dispute over environmental policy, we are telling the Court that such lawsuits pose a much broader threat to free speech and open scientific inquiry.

After all, the First Amendment does not permit government officials or private litigants to use lawsuits to penalize speakers for expressing views on matters of public concern. Nor does it allow government officials to favor one side of a debate while burdening the other.

The danger in such climate lawsuits is that they target particular speakers because of who they are. “These theories are dripping with textbook speaker-based discrimination,” we wrote. “Respondents have singled out Petitioners – fossil-fuel producers and sellers – and seek to impose on them special burdens that no other industry, environmental group, or renewable-energy advocate faces.”

Would a climate-change NGO be held liable for prompting a community to build a seawall it doesn’t need? The brief warns that such selective targeting undermines a core constitutional principle. As Justice Neil Gorsuch has observed, “the First Amendment does its real work in giving voice to those a majority would silence.”

Likewise, the brief notes that our scientific understanding of climate issues is still evolving. Although the plaintiffs contend that catastrophic climate consequences of greenhouse gases (GHGs) were known decades ago, our brief points out that in 2001 the Environmental Protection Agency still stated that “a [causal] linkage between the buildup of [GHGs] in the atmosphere and the observed climate changes during the 20th century cannot be unequivocally established.”
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Just a few days ago, the United Nations removed the worst-case scenario from its global warming predictions. Who knows which directions the science will go in the future? The lesson is that scientific inquiry should remain free and unpunished.

​Oak Flat in Arizona has been a sacred site for Apache people for centuries – a place of worship, ceremony, and spiritual connection with the Creator. Now the federal government has transferred the land to Resolution Copper, the foreign-held Rio Tinto-BHP mining venture that will turn the site into a crater nearly two miles wide and as deep as two Washington Monuments stacked end to end.

That destruction would permanently prevent Apache believers from practicing their religion at a place that is essentially their Vatican, their “Wailing Wall.”

Protect The 1st last week filed an amicus brief urging the federal Ninth Circuit to rehear this case en banc (before eleven of its judges), demonstrating that the court’s earlier decision in Apache Stronghold v. United States fundamentally misread federal religious-liberty law. That decision also failed to resolve contradictory understandings of the law within different rulings of that same en banc panel. 

Our brief explains how the court effectively held two irreconcilable ideas at once:

• First, that the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA) should be interpreted consistently; and

 

• Second – “substantial burden” on religion – means something entirely different depending on which of these two statutes applies. 

That legal contradiction matters because RFRA and RLUIPA are considered “sister statutes” enacted precisely to provide broad protection for religious exercise against government interference. The U.S. Supreme Court has repeatedly said these laws should be interpreted broadly in favor of religious exercise. And if RFRA cannot protect against the complete destruction of a sacred site central to Apache worship, then one must ask: What exactly can it protect?

The Ninth Circuit previously insisted that – in the land-use context – a “substantial burden” exists only when the government coerces believers into violating their faith or discriminates among religions. Our filing points to two recent Supreme Court decisions that further undermine this reasoning.

• In Mahmoud v. Taylor, the Supreme Court held that parents challenging mandatory exposure of their children to school materials conflicting with their religious beliefs were likely to succeed under the Free Exercise Clause – even absent direct coercion.

 

• Likewise, in Mirabelli v. Bonta, the Court sided with parents objecting to California school policies involving gender identity and parental notification, again recognizing a significant burden on religious exercise without requiring outright coercion. 

If parents can establish a substantial burden because school policies threaten to undermine religious teachings, surely Apache worshippers can establish a substantial burden when, as Justice Neil Gorsuch wrote in a dissent, “the government’s plan” will permanently destroy the Apache’s historical place of worship.

Again, if that is not enough to describe a burden on the free exercise of religion, it is hard to imagine what would be. Most important of all, the impact of this case defines the rights of all minority religions.

If the government can knowingly destroy a sacred Native American religious site while claiming no “substantial burden” exists, then all religious-liberty protections become hollow promises – especially for minority faiths lacking political power.

Protect The 1st believes religious liberty is indivisible. The rights of all Americans are strengthened when courts protect the faith practices of minority communities, including Native Americans whose sacred places have too often been treated as expendable.
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Our brief concludes with an undeniable fact – the Ninth Circuit’s decision is “at war with Supreme Court precedent, at war with the text of RFRA, and at war with itself.” 
The court should grant rehearing en banc and give the Apache people – and their First Amendment rights – the protection these American citizens deserve.

The Bill of Rights, the first ten amendments to the U.S. Constitution, has an underlying architecture in which each principle and right rests on – and reinforces – the others.

We hope that when the U.S. Supreme Court considers Chatrie v. United States, the Justices will see that surveillance, privacy, and expressive freedom are all facets of human liberty. At stake isn’t merely the correct application of the Fourth Amendment’s warrant requirement – that a neutral magistrate must find probable cause and specify the persons or places to be searched – but also the very conditions under which Americans can think, speak, and publish freely.

In Chatrie, the question is concrete: whether a geofence warrant – a broad data dragnet that compels companies to disclose the location information of all devices within a specific place and time – satisfies the Fourth Amendment. But the constitutional implications extend to conditions essential for our First Amendment freedoms to flourish.

Why the Supreme Court Should Not Try to Untangle Americans’ First and Fourth Amendment Rights

In an amicus brief, the Project for Privacy and Surveillance Accountability (PPSA) urges the Supreme Court to rein in geofence warrants. PPSA explains that these are “digital general warrants” incompatible with the Constitution because they invert the Fourth Amendment’s core design. Instead of naming a person or place based on individualized suspicion, they authorize the government to sift through massive data sets to identify potential suspects after a crime has occurred. This practice is not targeted policing. It is suspicionless data mining. 

These “reverse warrants” are consequential for more than location privacy. The same digital dragnets now being used to capture location data are being deployed in other contexts – keyword warrants, genetic data searches, and other forms of “reverse” searches that sweep up innocent Americans’ information merely because they intersected with a place, word, or characteristic.

The chilling effect is real – when people know that their movements, associations, or digital footprints can be turned over to the government without particularized cause, they think twice before seeking information, attending meetings, joining protests, or talking to journalists.

Thus, the Fourth Amendment’s privacy protections are not some narrow procedural right that disappears in the face of convenience. A world in which the government can collect comprehensive data about who attended a political rally or who was near a place of worship at a given time – without a warrant – is a world in which expressive liberty is chilled.

The Chatrie First Amendment Amici Make This Connection Explicit

The amicus brief filed by the Reporters Committee for Freedom of the Press, the Knight First Amendment Institute at Columbia University, and the Foundation for Individual Rights and Expression (FIRE) drills down on the point that Fourth Amendment privacy protections are also about protecting the informational foundations of a free society.

“Few investigative tools are more invasive than those that allow government to identify who met with a reporter,” Mara Gassman of the Reporters Committee for Freedom of the Press said in a statement. “There are longstanding safeguards designed to prevent law enforcement from intruding on confidential newsgathering because those intrusions endanger sources and impair public interest reporting.

“Dragnet location searches bypass those protections and threaten the independence of the press far beyond a single investigation,” Gassman said.

Without the Fourth Amendment’s requirement for particularized description of the targeted person or place, sweeping digital dragnets become the default – location data, communications, browsing behavior, social associations, and even journalists’ sources become vulnerable.

And when that happens, the law becomes a tool for monitoring who is where, talking to whom, and concerned about what. Even the perception of surveillance can dampen speech. When combined with the real potential for government access to rich troves of data, the effect is even greater.

The Constitutional Order Must Be Preserved

The Founders tied the First and Fourth Amendments together because a free society depends on privacy from arbitrary governmental intrusion and liberty of thought, speech, and press. When courts dilute the requirements for probable cause and particularity – as the Fourth Circuit did in Chatrie – they undermine that constitutional order. 
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Chatrie presents the Supreme Court with a chance to reaffirm the Fourth Amendment’s historic protections and avoid acquiescing to a surveillance state.

The Little Sisters of the Poor is a Catholic charity operated by nuns who care for the elderly poor. For 14 years now, they’ve had to undergo the legal version of the Stations of the Cross, dragged from courtroom to courtroom for refusing to violate their religious conscience. The latest attack on their mission by the states of Pennsylvania and New Jersey is utterly gratuitous – and flies in the face of two clear victories by the Little Sisters before the U.S. Supreme Court upholding their right to the free expression of religion.

Now these states are tripling down with a fresh attack to force the Little Sisters to violate their religious conscience.

“At bottom, the case asks whether religious claimants can decide for themselves that complying with a government program to avoid ruinous fines would violate their religious beliefs, thereby imposing a substantial burden under the Religious Freedom Restoration Act (RFRA),” Protect The 1st told the Third Circuit Court of Appeals in Philadelphia.

The ordeal of the Little Sisters began when the federal Department of Health and Human Services issued a mandate under the Affordable Care Act requiring employers to provide contraceptives – including some that can cause abortions – in their insurance programs. In 2016, the U.S. Supreme Court upheld the right of the Little Sisters to receive a religious exemption from this mandate.

Not content to leave them alone, the states sued to force the Little Sisters to force these nuns to provide contraceptives and abortifacients, or face tens of millions of dollars in fines. Once again, in a 7-2 decision, the Supreme Court shielded the Little Sisters of the Poor.

Now the Javerts of Pennsylvania and New Jersey are back with a new theory. They want this charity to be subject to a provision in federal guidelines to “self-certify” so that the government can provide payments to beneficiaries for contraceptive services separate from their health plan.
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The federal government, however, issued a rule designating the self-certification procedure as optional, while allowing religious employers with complicity-based objections to opt out of this requirement. This did not stop a federal court from finding in favor of the states.

These states insist on making the Little Sisters complicit in providing contraceptives. They are doing so by insisting on the enforcement of a federal provision that the federal government itself only enforces as “optional.”

The majority of Americans – including many Roman Catholics – have no issue of conscience with contraceptives. But the belief of the Little Sisters of the Poor is in keeping with Catholic doctrine and is a closely held tenet of their faith.

In our amicus brief, we tell the Third Circuit:

“The lower court’s rejection of the Little Sisters’ religious belief is particularly troubling … compliance with the government program at issue here would make them complicit in an activity their religion forbids.”

We see this as potentially harming religious minorities with religious views and practices outside of the mainstream.

“Those minorities face unique challenges to the right to practice their religions. Those challenges run the gamut from overt hostility from the prevailing religious majority to claims that minority beliefs are just ‘strange, even silly.’ If courts can reject claims that religious beliefs are violated by a particular government action, then that protection is lost.”

The Fourth Circuit Court of Appeals this week upheld the lengthy prison sentence of a Virginia man for knowingly training a customer who intended to create a weapon to kill federal agents. (Hat tip: Eugene Volokh.)

This case reflects a twist in First Amendment law. The Supreme Court established in Brandenburg v. Ohio (1969) that while one cannot be prosecuted for “hate speech,” one can be prosecuted for inciting “imminent lawless action.” But what if the bad intentions are in the mind not of the speaker, but in the mind of the listener?

The defendant in this case, Christopher Arthur, provided training to “help the average person to be able to defend themselves” against “tyrannical government of our own or an invading tyrannical government.” His online manuals included such handy topics as how to create “Fatal Funnels, Wartime Tactics” and “Improvised Explosives.”

As frightening as this sounds, such speech could be lawful if the intent is to defend oneself in a Red Dawn scenario in which communists (or cartels, or aliens, or a future dictator, etc.) conquer the United States. But Arthur became a target of FBI investigation after one of his customers, Joshua Blessed, was found to have had 14 live pipe bombs in his home identical to those in Arthur’s manual. Blessed also started a shootout with law enforcement, firing at least 29 shots, which ended with him being riddled with bullets.

The FBI investigation of Arthur relied on a confidential informant, codenamed “Buckshot,” who told Arthur that he wanted to kill federal ATF agents. From this, the Fourth Circuit majority concluded that the speech was “integral to criminal conduct.” It was “tantamount to aiding and abetting a crime.”

We cannot disagree. Providing the means to create, in Arthur’s words, “a freaking death box” in which to lure and kill federal agents should not be shielded by the First Amendment.

But a dissent from Judge Roger Gregory (p. 32) reminds us that even in the most clear-cut cases, ambiguities exist that could be twisted out of recognition in future cases. Judge Gregory imagines the following scenario.

“Consider, for instance, [a] university professor … who is scheduled to give a lecture on the physics of combustion, or even simply on the topic of potential energy, which surely constitutes ‘part’ of information about explosives. If the professor had reason to believe a listener would weaponize his information – perhaps a potential attendee sent a letter outlining malicious intentions, or an audience member wore a T-shirt suggesting an affinity for violence – then the professor could conceivably be prosecuted” under a federal statute.

“The same could be said for a publisher of an instructional manual for safe use of explosives in construction and demolition. If the publisher received prior notice of a potential reader’s inclination to weaponize the manual’s information, the publisher would be at risk of prosecution … In both examples, protected and socially valuable speech is stilted because of the possibility that a rogue audience member would misuse the information provided, even if the speaker did not intend such misuse …”

This scenario doesn’t appear to apply to Arthur’s case, who received a candid idea of what his customer intended.
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But Judge Gregory raises an important point. Today’s reasonable inferences have a way of being stretched to unreasonable extremes tomorrow. Holding speakers criminally responsible for a listener’s intentions risks turning protected instruction into prosecutable speech. That’s a standard the courts – and Congress – should watch with caution.

​New York Attorney General Letitia James appears to have been hoisted by her own petard… Wait a minute, what’s a petard?

The phrase comes from William Shakespeare’s Hamlet. A petard was a compressed pot of gunpowder, a kind of Reformation-era grenade. In modern English, this phrase means being blown up with your own weapon.

For President Trump’s most ardent defenders, James’ predicament – being charged by the Department of Justice for bank fraud and making false statements – is more than deeply ironic. For them, it is like a fine liquor to roll across one’s tongue and savor.

Consider: James ran for her office by making an explicit promise to get Donald Trump for… something.

Once elected, she brought a civil action against then-private citizen Donald Trump and the Trump Organization for exaggerating his wealth while seeking a commercial loan. The former and future president was fined $515 million, even though his lender – a former Deutsche bank executive – testified that Trump was a model borrower. An appeals court later slashed the amount of the fine.

“Today, justice has been served,” James said in reaction to her courtroom win. “This is a tremendous victory for this state, this nation, and for everyone who believes that we must all play by the same rules – even former presidents.”

Now James is facing federal charges for making false statements regarding her renting of a second home in Virginia. If convicted, James could face a fine of up to $1 million, and a possible (though unlikely) 30 years in prison.

James’ own words are being thrown in her face – “we must all play by the same rules.”

The satisfying taste of irony may turn bitter for James’ critics. Politico reports that the indictment omitted the fact that James’ Second Home Rider explicity mentioned “short-term rentals.”

This story follows on the heels of the president’s attempted firing of Federal Reserve Board Governor Lisa Cook “for cause” – now stayed by the courts – for allegedly claiming two properties as her primary residences. If she lied, she could have obtained better mortgage terms – not a good look for someone who regulates national interest rates.

As with the James case, however, the facts are murky. It is reported that Cook characterized one property as a “vacation home” in a loan estimate.

The administration’s mortgage police at the Federal Housing Finance Agency referred another bête noire, Sen. Adam Schiff (D-CA), to the Department of Justice on a mortgage issue.

What to make of all this?

The original sin in this train of abuses was Attorney General James’ pursuit of civil charges against a former president and political enemy whom she had promised voters to ruin in court. This was compounded by Manhattan District Attorney Alvin Bragg’s prosecution of Donald Trump for his hush-money payoff to porn star Stormy Daniels – spun by Bragg into 34 felony counts, including, somehow, violations of election law.

Now, on the theory that turnabout is fair play, the administration is targeting its former tormentors. Some of the cases – against former FBI Director James Comey and former National Security Advisor John Bolton – are complicated. For example, Comey was at best disingenuous in how he used the FBI to plant stories about Russian collusion from a source that he knew was dodgy. In both cases, however, these men have clearly been targeted out of animus. The scrupulous attention given to Bolton’s treatment of classified material, which prompted an FBI raid on his home, is clearly payback for writing a tell-all about the former advisor’s work in the first Trump White House.

Worse, the James-Cook-Schiff mortgage cases are not the result of a general crackdown. It appears that political appointees are selectively pulling mortgages of enemies for close examination.

On a human level, the instinct for payback is understandable. But if Republicans and Democrats keep targeting each other for prosecution, the U.S. political arena will come to resemble that of Moscow, where prosecutors are always ready to follow up on the promise of Stalin’s police chief, Lavrentiy Beria, who famously said: “Show me the man, and I’ll show you the crime.”

If selective prosecution is institutionalized, expect this weapon to be turned around once again against the people who now wield it.
​
Petards are being thrown, right and left. Keep it up, and everyone will be hoisted.

​Gabriel Olivier is an evangelical Christian who regularly preaches to passersby in a public park outside a public amphitheater in the city of Brandon, Mississippi. The city recognized Olivier’s right to speak, but told him he had to stay in a “protest area” far from people heading to the event center.
 
When Olivier approached pedestrians, he was confronted by police. When he explained to the local chief of police that he had a constitutional right to speak, he was arrested for his trouble and charged under a city ordinance. The U.S. Supreme Court will soon hear arguments on Olivier’s claim that the city ordinance violated his First and Fourteenth Amendment rights.
 
At its heart, this is classic forum law: Sidewalks, parks, and other public spaces have long been recognized as traditional fora for speech. But a procedural hurdle is at play as well: the question of whether Olivier should even get his day in court.
 
In Heck v. Humphrey, the Supreme Court held that when a plaintiff seeks restitution from state and local governments for violations of her constitutional rights, she must show that any related conviction or sentence related to that violation has been reversed, expunged, or declared invalid before suing. The Fifth Circuit held that Heck prevented Olivier from proceeding because he was convicted, pled nolo contendere, paid a fine, and chose to file a civil rights lawsuit rather than appeal his conviction.
 
Now the Supreme Court is set to determine if Olivier can bypass Heck and proceed to challenge the ordinance, or whether the procedural bar will remain, denying the merits question and leaving the city free to regulate speech.
 
If Olivier can get past this hurdle, he will have a strong case. The D.C. Circuit Court of Appeals, for example, has repeatedly upheld the rights of citizens to speak freely on the grounds of the U.S. Capitol, rejecting arguments that this is a “special type of enclave” immune from the guarantees of the First Amendment. Surely the prime section of a public park near an event center in Brandon, Mississippi, is subject to the same principle. Local governments often manage sidewalks, parks, plazas, and other public spaces that communities expect to remain open as fora for free speech. Consigning speakers away from intended listeners is not a reasonable restriction.
 
This case gives the High Court a chance to clarify the rules that allow citizens to challenge local restrictions on their constitutional rights. And, for a Court that has not been shy about protecting speech, it is a chance to recognize that in public parks, the roots of the First Amendment run deep.

​Last week, the Ninth Circuit Court of Appeals ruled that a Christian-owned, women-only spa in Washington State must serve biological males if they identify as transgender. That means, dissenting judge Kenneth Lee wrote, that “under edict from the state, women – and even girls as young as 13 years old – must be nude alongside patrons with exposed male [parts] as they receive treatment.”
 
The Ninth Circuit’s ruling is as constitutionally suspect as it is nonsensical. Olympus Spa is a Korean business drawing from a centuries-old cultural heritage. Such spas “require their patrons to be fully naked, as they sit in communal saunas and undergo deep-tissue scrubbing of their entire bodies in an open area filled with other unclothed patrons.” As such, they separate patrons by sex in accordance with their religious beliefs – which merits protection under the U.S. Constitution.
 
The facts of the case are fairly straightforward. When a pre-op transgender woman was apparently denied entry into Olympus Spa, she filed a discrimination complaint with the state’s Human Rights Commission. Eventually, Olympus brought suit on First Amendment grounds, arguing that the state’s enforcement action violated its free speech, free exercise of religion, and free association rights.
 
The Ninth Circuit dismissed the case, finding that the Washington Law Against Discrimination (WLAD) “did not impermissibly burden” those rights. The court majority asserted that the law is both neutral and generally applicable, and that the burden imposed was “no greater than was essential to eliminate discriminatory conduct.” The court further found that the spa’s activities did not constitute expressive activity.
 
Judge Lee, a Korean American, took issue with the majority’s findings – and particularly with its statutory interpretation of WLAD. The plain text, as Lee points out, bars discrimination based on “sexual orientation” and not gender identity. Moreover, he writes, the majority’s broad reading of the statute has the effect of discriminating against other protected classes – in this case, a discrete racial group of practicing Christians.
 
Lee writes:
 
“The Washington Human Rights Commission threatened prosecution against a protected class – racial minority members who want to share their cultural traditions – to favor a group that is not even a protected class under the statute. To be clear, transgender persons, like all people, deserve to be treated with respect and dignity. But showing respect does not mean the government can distort the law and impose its will on the people the law was intended to protect.”
 
Legitimate questions of statutory interpretation aside, we agree with Olympus Spa that it has strong First Amendment claims in need of recognition. Businesses, like individuals, have First Amendment rights (see Masterpiece Cakeshop). If this case goes to the U.S. Supreme Court, it is likely these principles will be applied.
 
Protect The 1st will report on any further developments in this case.

​When a federal judge this week struck down President Trump’s executive order targeting the WilmerHale law firm, ruling the order unconstitutional, it was the third recent slap-down of his efforts to punish individual firms. It also brought into stark relief how rapidly this administration is moving in two radically different directions on the First Amendment.
 
On the positive side, the president issued on day one an executive order reaffirming this administration’s commitment to the First Amendment. That order fairly criticized the Biden administration for “exerting substantial coercive pressure on third parties, such as social media companies, to moderate, deplatform, or otherwise suppress speech that the Federal Government did not approve.”
 
Following up on that order, Secretary of State Marco Rubio pledged to “close the book” on “the weaponization of America’s own government to silence, censor, and suppress the free speech of ordinary Americans.” He fulfilled this promise by shuttering the agency’s Global Engagement Center, which secretly tried to kill conservative publications and served as a Trojan horse for filtering content moderation requests to social media platforms.
 
On the other hand, Trump has repeatedly used executive orders to go after past political opponents, putting law firms they had been associated with in the crosshairs for their political leanings.
 
This week, Senior Judge Richard Leon of the U.S. District Court for the District of Columbia essentially said “enough.” He granted summary judgment in favor of WilmerHale, finding the president’s order violated key First Amendment protections and constituted an improper attempt to punish WilmerHale for its legal advocacy.
 
As with other executive orders, this one had barred WilmerHale lawyers from federal buildings, ordered a review of client contracts, and suspended the firm’s security clearances. Any of these measures alone would have been enough to make it impossible for WilmerHale’s 1,100 lawyers to represent many of their clients, hobbling the careers of those lawyers and the cases of their clients.
 
Judge Leon found these measures retaliatory, noting they stemmed from the firm’s representation of clients and causes President Trump dislikes, especially WilmerHale’s long association with former special counsel Robert Mueller.
 
Judge Leon rejected the administration’s effort to defend its order piece by piece, but instead compared it to “gumbo” with the opening section condemning the firm for the hiring of Robert Mueller to justify the later “meaty ingredients – e.g., the Andouille, the okra, the tomatoes, the crab, the oysters.” But, Judge Leon wrote, it is the opening section that vents on Robert Mueller, “the roux” which “holds everything together. A gumbo is served and eaten with the ingredients together, and so too must the sections of the Order be addressed together … this gumbo gives the Court heartburn.” 
 
One doesn’t have to be a fan of the lengthy Mueller “Russian collusion” investigation to share Judge Leon’s heartburn. Leon warned that upholding the order would betray the vision of the Founders. Judge Leon’s opinion finds the executive order to be a grand tour of violated First Amendment rights – from retaliation for speech, to viewpoint discrimination, interference with petition rights, and infringement of free association. The judge wrote: “The Order shouts through a bullhorn: If you take on causes disfavored by President Trump, you will be punished!”
 
The parallels to the administration’s enjoined orders against Perkins Coie and Covington & Burling are equally clear. Judge John Bates, in blocking an action against law firm Jenner & Block, quoted the Supreme Court in a major precedent, National Rifle Association of America v. Vullo (2024), one that ought to make it clear to conservatives what it would feel like if the shoe were on the other foot. Judge Bates wrote:
 
“More subtle but perhaps more pernicious is the message the order sends to the lawyers whose unalloyed advocacy protects against governmental viewpoint becoming government-imposed orthodoxy. This order, like the others, seeks to chill legal representation the administration doesn’t like, thereby insulating the Executive Branch from the judicial check fundamental to the separation of powers. It thus violates the Constitution, and the Court will enjoin its operation in full.”
 
Especially concerning to these jurists was the orders’ use of federal contracts to coerce firms and clients. As Judge Leon wrote, that is coercion, not policy. The adversarial system depends on lawyers being free to take on controversial cases without fear of retribution. Nine firms settled to avoid similar orders. WilmerHale chose to fight – and won a sweeping ruling for the First Amendment and for the principle that legal advocacy must remain free from political interference.
 
With these precedents in place, we hope it is clear to President Trump that attacks on law firms are going to continue to hit a brick wall, one that likely extends all the way to the Supreme Court if necessary.
 
A better way forward is to drop this fruitless campaign of harassment and return to what worked so well for President Trump early on – defending the First Amendment.

​The mindfulness movement encourages people to focus on the now, to be in the moment as they work, but also as they walk, trim the shrubs, drive the kids to school, and boil the spaghetti.
 
How about mindfulness at the moment of one’s execution?
 
In Buddhism, the practice of Maranasati is to use mindful breathing to reach the deepest level of contemplation. Many Buddhists engage in meditation and other spiritual practices as they actually are dying.
 
One person who sought to do this was the recently departed Jessie Hoffman, 46, a convert to Buddhism who wished to engage in meditative breathing as he died. He was prevented from doing so, however, because of the manner of his death, which happened Tuesday night. Hoffman had been sentenced to be lawfully executed for first-degree murder and became the first person in Louisiana to have a mask strapped on his face to be asphyxiated by breathing nitrogen gas.
 
Hoffman faced the death penalty because he had, at age 18, kidnapped 28-year-old Molly Elliott, raped her, shot her in the head, and left her naked body by a river.
 
After 27 years of appeals, the U.S. Fifth Circuit Court of Appeals rejected a stay of Hoffman’s execution, dismissing the claim that death by nitrogen amounted to a violation of the Eighth Amendment’s prohibition of “cruel and unusual punishment.”
 
Four Supreme Court Justices, including Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson would have granted Hoffman’s application for a stay. Justice Neil Gorsuch wrote a short dissent explaining his reasoning.
 
Justice Gorsuch noted that no one “has questioned the sincerity of Mr. Hoffman’s religious beliefs.” This is relevant to the application of the Religious Land Use and Institutionalized Persons Act (RLUIPA), which forbids the government from violating a prisoner’s sincerely held religious beliefs. Justice Gorsuch took a lower court to task for issuing its own “find[ing] about the kind of breathing that Mr. Hoffman’s faith requires.”
 
Given the failure of the lower court to fully vet Hoffman’s claim – and the “Fifth Circuit’s unexplained omission” in doing so – Justice Gorsuch announced that he would have granted the stay and vacated the judgment. He would also have remanded the case for the Fifth Circuit to address Hoffman’s RLUIPA claim.
 
This is reminiscent of another case, Ramirez v. Collier (2020), in which the Court ruled in favor of John Henry Ramirez, a man on death row in Texas who petitioned to have his minister lay a hand on him as he received a lethal injection. The Court sided with Ramirez, 8-1. The prisoner’s minister was permitted, in fact, to place his right hand on Ramirez as he died.
 
On its face, the idea of being able to engage in meditative breathing while ceasing to breathe altogether sounds a bit absurd. Prosecutors are always alert to prisoners who manufacture religious objections to extend their lives. Hoffman had requested that he be executed by firing squad, which would, to say the least, have also interfered with his meditative breathing.
 
But Justice Gorsuch reminds us that the free practice of religion, at the most solemn moment of a person’s life, should command sufficient respect to fully explore an RLUIPA claim. At the very least, Hoffman’s claim deserved more consideration, even if it was ultimately rejected.

Ramirez’s attorney, Seth Kretzer, said it best: “The First Amendment applies in the most glorified halls of power and also in the hell of the execution chamber.”

In an amicus brief to the Supreme Court on Monday night, Protect The 1st represented 66 Members of Congress that showed the U.S. Supreme Court why it should reverse a Fourth Circuit ruling in Mahmoud v. Taylor that rejected the First Amendment objections of parents whose children, some as young as three, cannot be opted out of exposure to material on moral issues controversial with many parents. In its brief, the Protect The First Foundation showed that it is unconstitutional to deny parents this choice, and that “federal law has consistently protected parental rights in the educational arena.”
 
Background
In 2022, the Montgomery County school board embraced books that promoted pronoun preferences, pride parades, and gender transitioning for young students. One book tasks three- and four-year-olds to search for images from a word list that includes “intersex flag,” “drag queen,” “underwear,” “leather,” and a celebrated activist/sex worker. 
 
When some Muslim and Christian parents sought to opt out their children from these teachings, one board member told them that claiming these books “offend your religious rights or your family values or your core beliefs is just telling your kid, ‘Here’s another reason to hate another person.’” On appeal, the Fourth Circuit held that because there was no evidence of either coercion or a direct penalty on these parents’ religious faith if their children were required to participate in these one-sided portrayals of questions about morality, this case involved no burden on their First Amendment rights.
 
An Absurd Outcome
The Protect The 1st brief demonstrates that there is nothing in federal law or the Court’s precedent that remotely supports the Fourth Circuit’s decision to deny parents the choice to keep their children out of such indoctrinating instruction.

• The Board argued that Title IX of the Educational Amendments of 1972 required it to deny notice or the right to opt out. Protect The 1st told the Supreme Court: “Yet the Board failed to quote or even cite a single provision of Title IX for its claim. Nor could it. The statute’s plain language makes clear that a school’s duty is to not itself discriminate.”

 

• The Fourth Circuit shared the Board’s view that the Supreme Court’s decision in Bostock v. Clayton controlled this expansive interpretation of Title IX. In fact, in Bostock, the majority – which ruled on whether an employer who fires someone for simply being homosexual or transgender – addressed employer discrimination, not educational policy. The majority did “not purport to address bathrooms, locker rooms, [dress codes,] or anything else of the kind.”

 

• In Bostock, the Court went out of its way to display concern that this opinion did not trample on religious liberty: “We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society.”

Neither the statute’s text nor Supreme Court precedent support the Board’s claims or the Fourth Circuit’s opinions.
​

• The current opinion stands directly opposed to carefully crafted laws passed by Congress over the past half-century to protect the religious freedom rights of parents. Courts have also regularly applied the Religious Freedom Restoration Act to protect parental rights.

“It seems clear to us that the excuses given by the board and the court, relying on federal law and Supreme Court precedent, border on the frivolous,” said Erik Jaffe, President of Protect The 1st. “Both Congress and the Supreme Court have routinely supported parental choice in matters involving the education of their children. And an opt-out for parents has long been recognized as a non-disruptive remedy that protects the rights of parents.

“We fully expect the Supreme Court to agree.”

The recent session of the U.S. Supreme Court will likely be remembered for two major rulings implicating fundamental separation of powers doctrine: Trump v. United States, establishing presumptive immunity from prosecution for official presidential acts; and Loper Bright Enterprises v. Raimondo, dispensing with the long-established “Chevron Two Step” granting deference to a federal agency’s interpretation of statutes. In both instances, the Court reaffirmed our constitutional system of checks and balances, including protection against encroachment on the powers and privileges of one branch of government by another.
 
Against the backdrop of those headline-dominating developments, the Supreme Court also took on several important First Amendment cases, with results that were constitutionally sound. Below are the highlights – and summaries – of the Court’s First Amendment jurisprudence released in recent weeks.
 
Food and Drug Administration v. Alliance for Hippocratic Medicine
 
In a unanimous ruling, the Supreme Court rejected a challenge to the Food and Drug Administration’s regulation of the abortion drug mifepristone. Little noticed by the media, the Court’s opinion also firmly nailed down the conscience right of physicians to abstain from participating in abortions and prescribing the drug.
 
Writing for the Court, Justice Kavanaugh said that the Church Amendments, which prohibit the government from imposing requirements that violate the conscience rights of physicians and institutions, “allow doctors and other healthcare personnel to ‘refuse to perform or assist’ an abortion without punishment or discrimination from their employers.”
 
From now on, any effort to restrict or violate the conscience rights of healers will go against the unanimous opinion of all nine justices of the U.S. Supreme Court.
 
Vidal v. Elster
 
The Supreme Court, in another unanimous decision, overturned a lower court ruling that found that the U.S. Patent and Trademark Office’s denial of an application to trademark a phrase including the name “Trump” violated the filer’s First Amendment rights.
 
Writing for the Court, Justice Thomas wrote that “[o]ur courts have long recognized that trademarks containing names may be restricted.” But such trademark restrictions, while “content-based” must be “viewpoint neutral.” This opinion prevents commercial considerations to scissor out pieces of the national debate. While the decision rejected a novel First Amendment claim to a speech-restricting trademark, it affirms sound First Amendment principles and protects the speech of all others who would discuss and debate the virtues and vices of prominent public figures.
 
The Court was right to refuse the endorsement of a government-granted monopoly on a phrase about a presidential candidate.
 
NRA v. Vullo
 
NRA v. Vullo – yet another unanimous opinion – cleared the way for the National Rifle Association to pursue a First Amendment claim against a New York insurance regulator who had twisted the arms of insurance companies and banks to blacklist the group.
 
Maria Vullo, former superintendent of the New York State Department of Financial Services, met with Lloyd’s of London executives in 2018 to bring to their attention technical infractions that plagued the affinity insurance market in New York, unrelated to NRA business. Vullo told the executives that she would be “less interested” in pursuing these infractions “so long as Lloyd’s ceased providing insurance to gun groups.” She added that she would “focus” her enforcement actions “solely” on the syndicates with ties to the NRA, “and ignore other syndicates writing similar policies.”
 
The Court found for the NRA, writing that, “[a]s alleged, Vullo’s communications with Lloyd’s can be reasonably understood as a threat or as an inducement. Either of those can be coercive.”
 
The Supreme Court’s opinion vacates the Second Circuit’s ruling to the contrary and remands the case to allow the lawsuit to continue.
 
As the Court wrote, “the critical takeaway is that the First Amendment prohibits government officials from wielding their power selectively to punish or suppress speech, directly or (as alleged here) through private intermediaries.” And we wholeheartedly agree – censorship by proxy is still government censorship.
 
Moody v. NetChoice

In one of two cases involving the nexus of government and social media, the Court seemed to punt on making a final decision on the constitutionality of laws from Florida and Texas restricting the ability of social media companies to regulate access to, and content on, their platforms.
 
Many commentators believed the Court would resolve a split between the Fifth Circuit (upholding a Texas law restricting various forms of content moderation and imposing other obligations on social media platforms) and the Eleventh Circuit (which upheld the injunction against a Florida law regulating content and other activities by social media platforms and by other large internet services and websites).
 
The Court’s ruling was expected to resolve the hot-button issue of whether Facebook and other major social media platforms can depost and deplatform. Instead, the Court found fault with the scope and precision of both the Fifth and the Eleventh Circuit opinions, vacating both of them and telling the lower courts to drill down on the varied details of both laws and be more precise as to the First Amendment issues posed by such different provisions. The opinion did, however, offer constructive guidance with ringing calls for stronger enforcement of First Amendment principles as they relate to the core activities of content moderation.
 
The opinion, written by Justice Elena Kagan, declared that: “On the spectrum of dangers to free expression, there are few greater than allowing the government to change the speech of private actors in order to achieve its own conception of speech nirvana.”

Murthy v. Missouri
 
In what looked to be a major case regarding the limits of government “jawboning” to get private actors to restrict speech, the Court instead decided that Missouri, Louisiana, and five individuals whose views were targeted by the government for expressing misinformation could not demonstrate a sufficient connection between the government’s action and their ultimate deplatforming by private actors.
 
Accordingly, the Court’s reasoning in this 6-3 decision is that the two states and five individuals lacked Article III standing to bring this suit. A case that could have defined the limits of government involvement in speech for the central media of our time was thus deflected on procedural grounds.
 
Justice Samuel Alito, in a fiery dissent signed by Justices Clarence Thomas and Neil Gorsuch, criticized the punt, calling Murthy v. Missouri “one of the most important free speech cases to reach this Court in years.” Fortunately, NRA v. Vullo, discussed above, sets a solid baseline against government efforts to pressure private actors to do the government’s dirty work in suppressing speech the government does not like. Later cases will, we hope, expand upon that base.
 
Secret communications from the government to the platforms to take down one post or another is inherently suspect under the Constitution and likely to lead us to a very un-American place. Let us hope that the Court selects a case in which it accepts the standing of the plaintiffs in order to give the government, and our society, a rule to live by.
 
Gonzalez v. Trevino
 
Protect The 1st has reported on the case of Sylvia Gonzalez, a former Castle Hills, Texas, council member who was arrested for allegedly tampering with government records back in 2019. In fact, she merely misplaced them, and was subsequently arrested, handcuffed, and detained in what was likely a retaliatory arrest for criticizing the city manager. In turn, Gonzalez brought suit.
 
Gonzalez’s complaint noted that she was the only person charged in the past 10 years under the state’s government records law for temporarily misplacing government documents. In 2019’s Nieves v. Bartlett, the Supreme Court found that a plaintiff can generally bring a federal civil rights claim alleging retaliation if they can show that police did not have probable cause. The Court also allowed suit by plaintiffs claiming retaliatory arrests if they could show that others who engaged in the same supposedly illegal conduct, but who did not engage in protected but disfavored speech, were not arrested.
 
The U.S. Court of Appeals for the Fifth Circuit threw out Gonzalez’s case, finding that she would have had to offer examples of those who had mishandled a government petition in the same way that she had but – unlike her – were not arrested. The Supreme Court, by contrast, found that, “[a]lthough the Nieves exception is slim, the demand for virtually identical and identifiable comparators goes too far.” The Court thus made it a bit easier for the victims of First Amendment retaliation to sue government officials who would punish people for disfavored speech.
 
The controversy will now go back to the Fifth Circuit for reconsideration.
 
***

While the Court avoided some potentially landmark decisions on procedural grounds, and offered a mixed bag of decisions concerning plaintiffs’ ability to obtain redress against potential First Amendment violations, the majority consistently showed a strong desire to protect First Amendment principles – shielding people and private organizations from government-compelled speech.

​It is a rare day that a federal court can get the First Amendment so wrong. But a panel of the First Circuit Court of Appeals managed to do it.
 
In the 2021 local school board election in Bourne, Massachusetts, candidate Kari MacRae based her campaign on a promise to “fight woke values.” She posted on TikTok that “the reason why I’m taking on this responsibility is to ensure that students, at least in our town, are not being taught critical race theory.” She shared a meme that showed a man wearing a sport’s bra with the caption, “Equality doesn’t always mean equity.”
 
You might deplore or “like” MacRae’s stance. But her comments clearly fall under the category of political speech, which courts have held is the most protected form of speech, subject to strict scrutiny when challenged by government restrictions. Clearly, many residents agreed with MacRae – she won her seat on the school board. That mandate, endorsed by the voters, did not stop the school district from firing her after she was later hired as a schoolteacher and these posts came to light.
 
The First Circuit, in ruling against MacRae, cited precedent in which government employees were sanctioned for statements they made in an official capacity. Judge Ojetta Rogeriee Thompson wrote that “public employees’ First Amendment rights ‘are not absolute,’ and so public employees ‘by necessity must accept certain limitations on [their] freedom.’” The case she cited, Garcetti v. Ceballos (2006) concerned statements by an employee of the Los Angeles district attorney’s office about the veracity of facts in a warrant affidavit. The Supreme Court held that the DA’s office could discipline the employee for publicly contradicting his superiors.
 
But MacRae did not make these statements as a teacher in a classroom. She made them as a private citizen running for office before she was even hired.
 
The Wall Street Journal points out the obvious danger of this ruling:
​
“The First Circuit’s decision delineates no statute of limitation or limiting principle to employee speech that government employers can punish. A teacher could be fired for hanging a ‘Make America Great Again’ flag at home. Political activity during college years could become grounds for dismissal.”
 
Love or hate what McRae says, comments from her political campaign should not be cause for her dismissal as a teacher. The U.S. Supreme Court might find review of this case to be too tempting to ignore.

​Protect The 1st is proud to announce our filing of an amicus brief before the U.S. Supreme Court in a pivotal case challenging a law in Michigan that restricts the religious rights of parents.
 
This legal challenge opposes what is known as a Blaine Amendment. This lawsuit is spearheaded by a group of Michigan parents confronting the amendment's prohibition on state aid to private, religiously affiliated schools. They show that it violates the Equal Protection Clause by denying families the opportunity to advocate for the freedom to choose educational options that align with their religious values.
 
The origins of Blaine Amendments are steeped in ugly history marked by discrimination and bigotry. Initially proposed as a federal law in 1875 by House Speaker James G. Blaine, these amendments seek to prevent direct government aid to religiously affiliated educational institutions. They reflect a period of intense anti-Catholic sentiment, targeting the influx of Catholic immigrants and their schools. While the federal amendment failed, many states, including Michigan, adopted similar provisions. Michigan's Blaine Amendment, like those of other states, effectively bars state support for religious schools, impacting those who seek education aligned with their religious beliefs and cultural values.
 
Protect The 1st believes that such amendments are not only a relic of a prejudiced past but continue to infringe on our First Amendment rights today. They undermine the pluralism that is vital to our nation’s educational landscape by restricting access to diverse schooling options that reflect familial and cultural values. This approach runs counter to the essence of American liberty and the pursuit of happiness, which includes the right of parents to direct their children's education.
 
Our brief celebrates the opportunity to challenge Michigan’s outdated and discriminatory Blaine Amendment. By standing with the petitioners, we aim to affirm the importance of educational choice and religious freedom, ensuring that all families have the right to educate their children in a manner consistent with their beliefs. Just five days after the petitioners filed before the U.S. Supreme Court, the Court called for a response in this case, a positive sign that the Court is seriously considering granting it cert.
 
Protect The 1st looks forward to further developments in this case.

​In November, we reported on a controversy in the San Antonio suburb of Castle Hills, which epitomizes the growing trend of using the law to punish disfavored speech. The Supreme Court’s recent argument reveals several justices showing solidarity with the arrested party.
 
Here are the facts: Sylvia Gonzalez was elected to a seat on the Castle Hills city council in 2019. During her first council meeting, a resident submitted a petition to remove the city manager – a petition spearheaded by Gonzalez – and it wound up in Gonzalez’s personal binder of documents. After being asked for the petition by the mayor, Gonzalez found it among her effects and handed it over.
 
The mayor initiated an investigation into Gonzalez under a Texas statute providing that “[a] person commits an offense if he […] intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a governmental record.” A warrant was subsequently served against Gonzalez, who was taken to jail and resigned from the council in humiliation. 
 
Gonzalez claims her arrest was retaliatory – trumped-up charges based on a little enforced statute and stemming from her support for removing the city manager. At issue is a legal doctrine known as the “jaywalking exception,” which guards against law enforcement arresting people for protected speech under the guise of some other petty statutory violation.
 
In Nieves v. Bartlett, the Supreme Court held that retaliatory arrest claims may proceed where probable cause exists – as it technically did with Gonzalez – but a plaintiff is arrested in a situation where officers “typically exercise their discretion not to do so.”
 
In such circumstances, a plaintiff must present “objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.”
 
Attempting to satisfy the exception, Gonzalez presented evidence that not one of 215 grand jury felony indictments in Bexar County under a tampering statute over the preceding decade involved an allegation remotely similar to the one levied against her. The Fifth Circuit found this insufficient, holding that Nieves requires comparative evidence of individuals who engaged in the “same” criminal conduct but were not arrested. In other words, going by the Fifth Circuit’s interpretation, Gonzalez would have to find specific instances of people who misplaced government documents but were not arrested. How would anyone even find such instances? The Fifth Circuit tasked her with proving a negative.
 
If the Fifth Circuit’s decision is left in place, Protect The 1st explained it would make it easier for law enforcement or other government officials to punish critics for expressing protected speech based on novel applications of relatively minor criminal laws. It also sets the evidentiary bar so high that few could ever hope to prove their case in a court of law.
 
During oral arguments, several justices seemed to agree. Justice Gorsuch, speaking about the many unenforced statutes on the books, said:
 
“You're saying they can all sit there unused, except for one person who alleges that ‘I was the only person in America who's ever been prosecuted for this because I dared express a view protected by the First Amendment,’ and that's not actionable?”
 
Justice Kagan, clearly thinking along the same lines, said the plaintiff has “solid objective evidence” that they were treated differently than similarly situated persons, noting:
 
“You should be able to say, ‘They've never charged somebody with this kind of crime before and I don't have to go find a person who has engaged in the same conduct.’”
 
Justice Jackson made similar remarks, while Chief Justice Roberts, who authored Nieves, seemed to take the other side, questioning whether expanding the evidentiary basis for refuting probable cause is consistent with the Court’s earlier ruling. It “seems to me to be inconsistent,” he said. Justice Kavanaugh likewise noted, "If you intentionally stole a government document at a government proceeding — that's not nothing.”
 
Why Gonzalez would want to hide a petition she helped organize is far from clear. Her conduct was so benign that the only inference one can reasonably draw is that she was the target of retaliation. Protect The 1st hopes the Court sides with her and makes it clear they will hold public officials accountable for weaponizing the law against those who speak their minds.

​A case from Grants Pass, Oregon, presents a compelling study and examination of the role that religious charities play in helping the helpless.
 
In 2018, a group of homeless people sued the City of Grants Pass over its municipal ordinances – and hefty fines – meant to prohibit sleeping on public land. Specifically, the group alleged violations of the Eighth Amendment, which bans “cruel and unusual punishment.” In 2023, the Ninth Circuit Court of Appeals ruled for the plaintiffs using its own particularized formula that bans the prosecution of homeless people if there “is a greater number of homeless individuals … than the number of available” shelter beds. At the same time, the court relied on precedent asserting that shelters with a “mandatory religious focus” could not be included in their calculations due to possible violations of the Constitutional prohibition against the establishment of religion.
 
Whatever one thinks of the underlying issue about rights and responsibilities regarding homelessness, the Ninth Circuit’s disregard for religious charitable organizations shows a broader legal hostility towards religion itself. Worse, it discounts religious institutions’ many contributions to social welfare and safety.
 
In 1971, the Supreme Court held in Lemon v. Kurtzman that state statutes do not violate the Establishment Clause if they: 1) have a secular purpose 2) do not advance or inhibit religion, and 3) do not result in “excessive government entanglement” with religion. The test was used repeatedly as a means to disenfranchise – or entirely disregard – religious institutions that contribute to the public good. 
 
In 2022’s Kennedy v. Bremerton School District, U.S. Supreme Court Justice Neil Gorsuch instructed lower courts to ignore Lemon, instead directing them towards a historical analysis that takes into account what was understood as a religious “establishment” when our nation was founded.
 
Unfortunately, this guidance is largely disregarded across the United States. As the Becket Fund writes, “[f]or decades, the Lemon test had caused courts to incorrectly apply the Establishment Clause, driving religious people and religious ideas out of public life. Even though Lemon was overturned, many lower courts, including ones within the Ninth Circuit, continue to rely on it.” Becket’s amicus brief before the U.S. Supreme Court, which is set to review the case soon, urges the justices to “reiterate that courts should apply a historical test” when deciding on Establishment Clause violations.
 
Much is at stake behind this seemingly esoteric legal issue.
 
Religious institutions unquestionably have always had and continue to have a major role in providing a social safety net in the United States. Continuing to rely on the Lemon test, which categorically excludes religious organizations from public life due to their “overall religious atmosphere,” is a gross overextension and misinterpretation of the First Amendment’s Establishment Clause. As the Becket Fund notes, it “confuses private and state action” when it comes to making distinctions about religion. Overall, this ruling is indicative of widespread local government dismissal of, or even hostility toward, the social contributions of people of faith.
 
If a theocracy is one extreme the courts wish to avoid, a secular lack of acceptance for religious pluralism is the opposite extreme. Governments should welcome religious institutions that provide social safety nets. And it starts with the rejection of a reactionary, overruled legal doctrine that discredits the civic contribution of religious charities.

​The Ninth Circuit Court of Appeals’ ruling against the Apache Stronghold, unless overturned, will allow the Apache’s Oak Flat religious site to be destroyed by a private mining company.
 
These lands have long been recognized by the U.S. government as the singular, sacred site of the Apaches’ worship. Set to be transformed into a crater twice as deep as the Washington Monument, not only is Oak Flat in danger of being destroyed, but with it the religion that centers around that site.
 
The least we can say is that this one was painfully close, a 6-5 split decision. The Ninth Circuit asserted that the transfer of this land, revered as the center of the Apache religion for centuries, did not (somehow) even trigger an inquiry under, much less violate, violate the Religious Freedom Restoration Act. That Act requires strict scrutiny of any law that burdens religious freedom. Judge Mary H. Murguia issued a stinging rebuke of the majority in her dissent:
 
“We are asked to decide whether the utter destruction of Chí’chil Biłdagoteel, a site sacred to the Western Apaches since time immemorial, is a ‘substantial burden’ on the Apaches’ sincere religious exercise under the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. §§ 2000bb to bb-4. Under any ordinary understanding of the English language, the answer must be yes.”
 
Unless the U.S. Supreme Court grants cert. and overturns the Ninth Circuit’s unduly narrow conception of what constitutes a “burden” on religion, the Oak Flat religious site will become one of the nation’s largest copper ore mines, the result of a midnight deal in Congress. This scenic place of worship will become an ugly pit.
 
What was the reasoning of the majority? This en banc decision relied on a U.S. Supreme Court case, Lyng v. Northwest Indian Cemetery Protective Ass’n (1988), which held that government disposition of property does not violate the Free Exercise Clause so long as it “compels no behavior contrary to … belief.” It is doubtful that the Ninth Circuit’s broad reading of that statement remains valid, if it ever was. If barring people from entering a place of worship under COVID restrictions raises serious free exercise problems, it is hard to see how completely destroying a religion’s essential place of worship does not at least impose a burden sufficient to trigger strict scrutiny under RFRA.
 
People of all faiths should be concerned that the circuit court took such a miserly view of the free exercise of religion. Imagine the outcry from Catholics if the government decided to turn the Basilica of the National Shrine of the Immaculate Conception into dust. Or the outcry of American Jews if a midnight deal in Congress targeted the Touro Synagogue in Rhode Island – the oldest still standing in the United States, and where George Washington welcomed Jews into the heart of America – to become a seemingly bottomless pit. The notion that such acts would not even “burden” the exercise of religion goes well beyond the implausible and into the absurd.
 
We hope the Justices of the Supreme Court dwell on the words of our first President, who famously wrote to the congregants of the Touro Synagogue: “Every one shall sit in safety under his own vine and fig tree, and there shall be none to make him afraid.” Can we say that is true for everyone in our country now? To again quote the dissenting judges, “the destruction of the Apaches’ sacred site will prevent worshipers from ever again exercising their religion.”
 
Luke Goodrich, senior counsel at Becket who represented the Apache, tweeted: “We fully expect SCOTUS to take this case, confirm the plain meaning of federal law, and hold that Native Americans are entitled to the same protection of their religious freedom that every other American enjoys.” Protect The 1st is also hopeful the Court will see that the Apaches’ free exercise of religion is inextricable from the preservation of this uniquely holy place.
 
For the Supreme Court to review this case would be a prayer answered.

​When does a legal reporting requirement for a social media company become a violation of the First Amendment? When it drums up public and political pressure to enforce viewpoint discrimination.
 
This is the conclusion of legal scholar Eugene Volokh and Protect The First Foundation, which filed an amicus brief late Wednesday before the Ninth Circuit Court of Appeals asking it to overturn a lower court ruling that upheld a California law requiring social media companies to disclose their content moderation practices. California Bill AB 587, signed into law by Gov. Gavin Newsom in 2022, compels social media companies to produce two such reports a year on their moderation practices and decisions, to be published on the website of the California Attorney General.
 
This law “violates the First Amendment’s stringent prohibition on viewpoint discrimination” by “requiring social media companies to define viewpoint-based categories of speech,” declared Volokh, Senior Legal Advisor to Protect The 1st. “The law also requires these companies to report their policies as to those viewpoints, but not other viewpoints ...”
 
This brief supports the challenge from X Corp.’s lawsuit filed in September 2023 that also asserted that AB 587 violates the First Amendment, which “unequivocally prohibits this kind of interference with a traditional publisher’s editorial judgment.”
 
Volokh and Protect The 1st cited the landmark U.S. Supreme Court case, NAACP v. Alabama (1958), in which the Court overturned an Alabama law that would have compelled disclosure of the NAACP’s membership lists. The threat behind this law, the Court noted, relied on governmental and private community pressures that would result in the harassment of individuals and discouragement of their speech.

“Generating either massive fines or public ‘pressure,’ a euphemism for public hostility, triggers the most exacting scrutiny our Constitution demands,” Volokh told the court. “California Assembly Bill 587 violates the First Amendment’s stringent prohibition on viewpoint discrimination. And AB 587 does so by leaning on social media companies to do the government’s dirty work, either through fear of fine or public pressure.”
 
The brief cites a Supreme Court opinion that states “what cannot be done directly [under the Constitution] cannot be done indirectly.” Volokh writes:
“The intent behind the law is clear from its legislative history, comments by its enforcer (Attorney General Rob Bonta), and common sense. That intent is to strongarm social media companies to restrict certain viewpoints—to combine law and public pressure to do something about how platforms treat those particular viewpoints, and not other viewpoints. That confirms that the facial viewpoint classification in the statute is indeed a viewpoint-based government action aimed at suppressing speech—and that violates the First Amendment.”
 
Protect The 1st will continue to report on X Corp.v. Bonta as an important flashpoint in the continuous struggle to keep speech free of official regulation.

​In the closing days of 2023, Elon Musk and X Corp lost the first round of their bid in a state court to overturn a California law that would require social media platforms to disclose their content moderation policies. The law in question came into effect in 2022 and was advertised as a way to tamp down on hate speech, disinformation, harassment, and extremism.
 
The suit alleged that that the law’s real purpose was to coerce social media platforms into censoring content deemed problematic by the state. While District Judge William Shubb ruled that the law does impose a substantial compliance burden, he found it does not unjustifiably infringe on First Amendment rights.
 
Protect The 1st believes X has a strong basis to appeal under settled precedent.
 
For example, in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio (1985), the U.S. Supreme Court found that states can require an advertiser to disclose information without violating the advertiser's First Amendment free speech protections. But the disclosure requirements must be reasonably related to the state’s interest in preventing deception of consumers. This is not a case of selling gummies and advertising them as cures for cancer.
 
It is reasonable to assert that some social media companies might do themselves a favor by releasing simple, clear content moderation policies to the public. But we should never forget that these policies are confidential, proprietary information. Requiring their forced disclosure could tip the scales in favor of state-enforced censorship of social media, which at least one federal judge believes is already occurring on a mass scale. Worse, the California law violates the First Amendment by compelling speech on the part of the companies themselves.
 
Protect The 1st expects X to appeal with good prospects to overturn this ruling.