​Protect The 1st on Monday filed a comment with HHS detailing many of the ways in which the proposed recension of a 2019 rule to protect the religious conscience rights of physicians, nurses, and other health-care providers will hurt access to care among low-income and underserved Americans.
 
In 2019, the Department of Health and Human Services (HHS) reported that a poll showed that more than 80 percent of healthcare providers who are religious would likely limit their scope of practice if they were required to participate in practices and procedures – such as abortion or sex reassignment surgery – to which they have a moral, ethical, or religious objection.
 
“If the existing rule is rescinded, many of these physicians will be forced to choose between obeying their conscience or violating their most cherished beliefs,” said Gene Schaerr, general counsel of Protect The 1st. “There is no lack of health-care providers who are willing to provide these procedures. Trying to force the minority of doctors and other providers to violate their conscience is a pointless exercise in religious discrimination and enforced ideological conformity.”
 
Protect The 1st asks HHS:
 
Please explain why, in the Department’s view, religious freedoms do not warrant protective regulatory provisions similar to those protecting other civil rights.
 
Please estimate how many doctors will likely leave the medical profession if they are required to perform medical procedures to which they are religiously opposed.
 
Please estimate the effect on underserved communities if religious hospitals and other entities choose to shut down rather than perform procedures to which they are religiously opposed.
 
Please estimate the rate at which patients will be unable to obtain what the Department considers healthcare if the 2019 final rule is largely rescinded.
 
The Protect The 1st comment also noted that the HHS proposal to move from reviews of systemic offenders to a “case-by-case” basis will shift the burden of litigation to injured parties. The department’s removal of all compliance requirements will almost certainly encourage the recent rash of local laws that discriminate on the basis of religion.
 
The Protect The 1st filing also said that the “proposed new rule is so deficient as to appear half-hearted in its attempt to protect religious freedoms.” In seeking to purportedly protect religious liberty and expand healthcare, the department’s new rule “cuts its own feet out from under it.”
 
Protect The 1st will work to communicate the dire nature of this rule change – and its impact on those who can least afford a restriction of access to health care – to the Biden Administration and to Congress.

​Former U.S. Senator Rick Santorum today joined with Protect The 1st to urge the U.S. Supreme Court to reject the petitioners’ argument in Gonzalez v. Google that the algorithmic recommendations of internet-based platforms should make them liable for users’ acts.
 
Santorum and Protect The 1st told the Court that curtailing Section 230 “would cripple the free speech and association that the internet currently fosters.” As a senator, Santorum had cast a vote for Section 230 to send the bill to President Bill Clinton’s desk for signature in 1996.
 
The Protect The 1st amicus brief informed the Court:

• Section 230 enables focused discussions: Section 230 is a law that “has created a thriving online marketplace of ideas in which diverse individuals can have their voices amplified and can freely associate with friends, journalists, thought leaders, and government officials.”
  
  
• Without Section 230 immunity, the internet would devolve into word soup: The benefits of Section 230 would be eroded if the Court adopted the petitioners’ argument. Without immunity, internet platforms could not organize content in a way that would be relevant and interesting to users.
  
  
• Section 230 explicitly allows some editorial functions: “Section 230 not only bars claims that treat platforms that host third-party content provided by others as ‘publishers’ of that content, but also identifies as protected services those that ‘filter,’ ‘choose’ and ‘organize’ content. Organization of content is an inherent aspect of any effort to effectively present vast quantities of information to the public, and it falls squarely within Section 230’s bounds.”
  
  
• Constitutional protection: Moreover, the brief states, “sorting, grouping, and placing content is also an editorial decision presumptively protected by the First Amendment.”

The brief described for the Court the harm to society that would occur if the Court were to disregard Section 230’s inclusion of First Amendment-protected editorial judgments. The brief tells the Court:

• Provocative, counterintuitive content would be blocked: “If platforms faced liability for merely organizing and displaying user content in a user-friendly manner, they would likely remove or block controversial—but First Amendment protected—speech from their algorithmic recommendations …”
  ​
• But filters could not stop bigots and pornographers: Imposing liability on platforms for their organization of content “would also make it virtually impossible for platforms to use algorithms that allow users to find content from like-minded sources and, equally important, to avoid content, like pornography and bigoted speech, that they find objectionable.”

 
And there is no need for the Supreme Court to rewrite Section 230: As amici explained, Congress can choose to amend Section 230 if new challenges necessitate a change in policy. For example, Congress recently eliminated Section 230 immunity when it conflicts with sex trafficking laws, and Congress is currently debating a variety of bills that would address specific concerns about algorithm-based recommendations.
 
The Protect The 1st’s brief states: “The judiciary is never authorized to interpret statutes more narrowly than Congress wrote them, but it is especially inappropriate to do so when Congress is already considering whether and how to amend its own law.”
 
Background:

This Protect The 1st amicus brief answers the question before the U.S. Supreme Court in Gonzalez v. Google: “Does Section 230(c)(1) of the Communications Decency Act immunize interactive computer services when they make targeted recommendations of information provided by another information content provider?”
 
Th case pending before the Court centers around the murder of Nohemi Gonzalez, a 23-year-old American who was killed in a terrorist attack in Paris in 2015. A day after this atrocity, the ISIS foreign terrorist organization claimed responsibility by issuing a written statement and releasing a YouTube video that attempted to glorify its actions. Gonzalez’s father sued Google, Twitter, and Facebook, claiming that social media algorithms that suggest content to users based on their viewing history makes these companies complicit in aiding and abetting international terrorism.
 
No evidence has been presented that these services played an active role in the attack in which Ms. Gonzalez lost her life. A district court granted Google’s motion to dismiss the claim based on Section 230 of the Communications Decency Act, a measure that immunizes social media companies from content posted by users. The U.S. Court of Appeals for the Ninth Circuit affirmed the lower court’s ruling.
 
The Supreme Court is scheduled to hear oral arguments Feb. 21.

CLICK HERE FOR THE AMICUS BRIEF 

​The Protect the First Foundation joined the Jewish Coalition for Religious Liberty in an amicus brief filed today in the U.S. Ninth Circuit Court of Appeals to prevent the destruction of the sacred land of the Apache Stronghold of Arizona, “because the religious liberties of all rise and fall together.”
 
“This is a critical case for all people and communities of faith because it raises a fundamental question of what constitutes a ‘substantial burden’ on the ‘exercise of religion’ under the Religious Freedom Restoration Act (RFRA)” the brief states.
 
A district court had previously found that, to the Western Apache, Oak Flat is “a ‘direct corridor’ to the Creator’s Spirit.” The Oak Flat parcel of the Tonto National Forest has for centuries been such a sacred place to the Apache. If a government-approved transaction is allowed, Oak Flat will be turned over to a foreign mining consortium, Resolution Copper, to be transformed into a crater as long as the Washington Mall and as deep as two Washington Monuments.
 
A 2-1 split on a three-judge panel on the Ninth Circuit had ruled in June against the Apache, finding that the destruction of Oak Flat would not amount to a “substantial burden” on the practice of religion under RFRA. In September, however, the court made the rare move to rehear the case before an en banc hearing – meaning that it will be before 11 randomly selected Ninth Circuit judges. This happens in fewer than 0.5 percent of cases.
 
“[T]he panel erroneously concluded that the Apache will not be ‘substantially burdened’ as defined by RFRA,” Protect the First Foundation’s brief states. “Since RFRA does not define ‘substantial burden,’ this Court should follow the Supreme Court’s guidance and apply the ordinary or natural meaning of that term.” The brief also quotes Justice Neil Gorsuch from his days as a judge on the 10th Circuit Court of Appeals that whenever the government “prevents the plaintiff from participating in [a religious] activity,” and gives the plaintiff no “degree of choice in the matter,” that action “easily” imposes a substantial burden on religious exercise.
 
The brief demonstrates that the prior ruling erred in narrowly applying a previous Ninth Circuit case, Navajo Nation v. U.S. Forest Service, despite it having more expansive permissible readings. “But, if true that Navajo Nation required the result reached here, then this Court should overturn it because it would mean Navajo Nation has adopted an erroneous and unduly narrow understanding of what a substantial burden is – an understanding that cannot be squared with the text or purpose of RFRA or Supreme Court precedent.”
 
The appellants also noted that the panel defended its conclusion on the grounds that the Supreme Court in Lyng v. Northwest Indian Cemetery (1988) found no valid free exercise claim. But that case preceded the passage of RFRA and its protections by decades. Moreover, in Lyng, the Court allowed the development of government land around religious sites. It did not propose to destroy them.
 
“It follows that a destroyed Oak Flat would devastate the Western Apache much like an obliterated Vatican for Catholics, a demolished Kaaba (in Mecca) for Muslims, or a dismantled temple for members of the Church of Jesus Christ of Latter-day Saints,” the brief declares. “But the burden imposed on the Western Apache would be worse still than even the destruction of religious buildings, because their religion is rooted in the land itself, not just buildings that have been built there.”
 
The brief quoted a district court: “Resolution Copper’s planned mining activity on the land will close off a portal to the Creator forever and will completely devastate the Western Apache’s spiritual lifeblood.”
 
PT1st will continue to monitor this case as it is decided by the Ninth Circuit.

​Protect The 1st filed a brief on Friday in favor of a Supreme Court petition from 21 current and former lifeguards who are being forced to remain for years against their will as dues-paying members of a public employee union.
 
In September 2019, these California Department of Parks and Recreation lifeguards signed forms that authorized a public union, the California State Law Enforcement Agency, to enroll them as members and deduct union dues from their wages.
 
On the form was a vaguely worded statement that there were limitations to withdrawal from the union. This may have seemed like boilerplate since a Supreme Court opinion in June 2018, Janus v. American Federation of State, County, and Municipal Employees, held that public-sector unions cannot require non-member employees to pay agency fees covering the costs of even non-political union activities.
 
The form did not explain that if members wished to resign their union membership, they could only do so during a single thirty-day period every four years. This means the lifeguards who signed the form will be forced to remain union members until July 2023. Over this time, any political stance or activity taken by the union will be done in the name, and with the money, of these unwilling members.
 
The lifeguards sued to protect their First Amendment rights. In April, the federal Ninth Circuit Court of Appeals ruled against them.
 
In our brief before the Supreme Court, Protect The 1st informs the Court:
​
“The front page of the California State Law Enforcement Agency (‘CSLEA’) website currently sports a banner reading ‘My Union, My Choice!’ But when Petitioners asserted their choice to leave that union, the union and the state of California sang a different tune. California has a ‘maintenance of membership’ agreement with CSLEA, which forces employees to remain union members and pay full union dues for four years, all the while subsidizing union speech they no longer wish to support.
 
“Compelled speech and association—especially of a political nature—is not permissible under the First Amendment. And it is particularly shocking in this case, where the State seizes money from Petitioners’ paychecks and gives it to the union, which in turn supports political candidates and legislation through multiple election cycles.”
 
Our brief demonstrates three reasons why the Court should take up this case.
 
The “Member Maintenance” Agreement Compels Political Speech
California is forcing these government employees to support union speech, including political speech and candidates supported by the union, for up to four years. The repeated injuries to First Amendment rights over such a long period of time are especially egregious.

Even De Minimis Violations of the First Amendment Are Illegal
Compelling speech from American citizens for four years is unconscionable, but any compelled speech or association that violates the First Amendment, even if that compulsion includes only a few words or lasts for a few moments, is objectionable. As the Supreme Court held in 1976, “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”
 
The Lower Courts Are Eviscerating Janus’s Protections
Before the Ninth Circuit’s ruling against the lifeguards in April, the Third and Seventh Circuits had also imposed improper limits on the Supreme Court’s Janus decision. The Court had made it clear that “compelled subsidization of private speech seriously impinges on First Amendment rights.” Yet lower courts continue to allow such violations.
 
“This petition gives the high Court the means by which to reinforce the plain meaning of its ruling in Janus to the lower courts,” said Gene Schaerr, general counsel of Protect The 1st. “It upholds the obvious principle that the erosion of our First Amendment rights for even a minute is unacceptable – and the maintenance of that violation for years is obscene.”

​Protect The 1st today joined the Jewish Coalition for Religious Liberty, the Sikh Coalition, and the American Islamic Congress in petitioning the U.S. Supreme Court to review the harms inflicted on religious liberty by a Ninth Circuit Court of Appeals decision.
 
This petition concerns a case that began in 2008 when the U.S. Highway Administration, ignoring the objections of members of the Yakima Nation and Grande Ronde tribes, bulldozed Native ancestral burial grounds and dismantled a stone altar. The site was razed to widen U.S. Highway 26 in Oregon, while a tattoo parlor on the other side of the highway was left untouched.
 
After this desecration of their sacred lands, tribal members sought relief for this infringement in federal court. On Nov. 24, 2021, the Ninth Circuit Court of Appeals ruled the government would not be held responsible for destruction of the sacred site and dismissed the case as moot.
 
On Nov. 4, 2022, a coalition of Jews, Muslims, Sikhs, and Protect The 1st petitioned the Supreme Court to consider the threat to religious liberty, especially non-Western and Indigenous religious groups lacking political clout, by this cavalier treatment of a faith by the federal government.
 
The coalition’s petition demonstrates three errors driving the Ninth’s egregiously wrong decision, which threatens to gut the protections of the free exercise of religion under the First Amendment, the Religious Freedom Restoration Act (RFRA), and the Religious Land Use and Institutionalized Persons Act (RLUIPA).
 
First, The Ninth Circuit took a ‘our hands-are-tied approach.’ The court ignored that under RFRA, the government must rule out any possibility of remedying a religious freedom violation—including remedies that might partially satisfy the plaintiffs’ religious beliefs. The court uncritically accepted the government’s position that any relief would, somehow, involve “safety” regarding the highway easement.
 
For example, the Ninth Circuit refused to consider actions that could be taken without impairing highway safety, such as planting trees or medicinal herbs in the surrounding areas, or whether any part of the sacred site could be rebuilt outside of the narrow strip of land covered by the easement.
 
The coalition’s petition informs the High Court that the failure of the Ninth Circuit to consider the possibility of some measure of relief “is especially troubling here, where the Ninth Circuit was deciding the rights of minority religious adherents. Especially in such cases, courts must thoroughly evaluate what sorts of accommodations believers of minority faiths might find acceptable …” 
 
Second, the Ninth Circuit’s decision ignores RFRA’s broad grant of authority to the judiciary to redress government interference with religious practice. The coalition brief explains that the Ninth Circuit decision here “flouts RFRA’s text” and Supreme Court precedent. “In holding that courts are powerless to redress statutory and constitutional violations because some remedies might (in the government’s view) implicate a state agency’s right-of-way, the Ninth Circuit got things exactly backwards.”
 
Instead, when federal courts confront federal actions that infringe on religious rights, the authority of courts to act in defense of those rights is strong.
 
Third, the Ninth Circuit took at face value the government’s claims that no remedy was feasible, instead of analyzing that claim under RFRA and RLUIPA. The coalition concludes: “If left standing, the Ninth Circuit’s decision would gut RFRA, permitting government actors to simply claim ‘infeasibility’ whenever they find accommodating religious practice inconvenient.”
 
“This case is a matter of heartbreak for American citizens of Native faiths,” said Gene Schaerr, general counsel of Protect The 1st. “It should also be a matter of deep concern for Sikhs, Jews and Muslims who wish to wear outward manifestations of their faith, as well as Christians and people of all faiths who want to preserve the protections of the Religious Freedom Restoration Act.”

​When the founders drafted the First Amendment forbidding the abridgement of freedom of speech, “pamphlet wars” were common, with opposing sides handing out flyers and inviting passersby to listen to their opinions. Even in this age of tweets, most Americans recognize parks, sidewalks, and other public spaces as venues where people are allowed to hand out flyers and politely ask passersby to hear them out.
 
The federal courts, however, are split on the question of whether this form of expression, as old as colonial America, must be respected today under the First Amendment.
 
Concerned about this encroachment on speech, Protect The 1st petitioned the U.S. Supreme Court to hear a case from a street preacher who was silenced by university officials and police. This happened when evangelist Rodney Keister stood on city-owned sidewalks on a public street in Tuscaloosa, Alabama, near the University of Alabama. By agreement with the city, the UA campus police oversee a portion of the public sidewalk at an intersection near – but not on – the campus. The campus police more than once warned Keister that he could not preach on this public sidewalk. Fearing arrest, the preacher left but filed a lawsuit that was eventually heard by the Eleventh Circuit Court of Appeals.
 
The question as to whether a city-owned public sidewalk is a traditional public forum should be a slam-dunk in favor of free speech. But federal courts are split on the issue.
 
The Ninth, Tenth, and D.C. Circuits stick with the First Amendment analysis in these public forum cases, allowing speech. But other circuits hold that streets open to the public but adjacent to college and university buildings are limited public forums. Speech there can be restricted.
 
In one public forum case, the D.C. Circuit ruled against the government, which attempted to prohibit a demonstrator from holding a sign or distributing leaflets on the grounds of the U.S. Capitol building. While these grounds are obviously under the control of federal authorities, they are parklike and open to the public. Making this distinction, the D.C. court rejected any claim that the grounds were a “special type of enclave” that had to be protected from free expression. That court held that “because of their historical association with the exercise of free speech,” streets, parks and sidewalks are quintessential examples of public forums.
 
The Eleventh Circuit, on the other hand, held that even though the sidewalk in Tuscaloosa was open to the public and owned by the city, the maintenance of that sidewalk by the university necessarily involves the university’s intent toward expressive activity.
 
Protect The 1st asks the Supreme Court to consider if courts can “apply an amorphous and manipulable balancing test that relies on the government’s or its delegee’s intent to restrict speech as a justification for doing so.” We also informed the Court that by “denying ‘public forum’ status to a place that has traditionally been a public forum – sidewalks tied to public streets – the decision below threatens the First Amendment not merely in Tuscaloosa, but throughout the Nation.”
 
In our petition, Protect The 1st tells the Supreme Court that the “use of multifactor balancing tests makes the outcomes in any given case unpredictable and unprincipled. There is a better way. Relying on the text of the First Amendment, read in light of history and tradition, providers a surer approach.”
 
Protect The 1st believes this case not only raises important constitutional questions on which the courts of appeal are divided, but also presents an excellent vehicle for the Supreme Court to resolve them.

​Eugene Volokh, famed legal scholar and professor of law at UCLA, appeared before the judges of the D.C. Court of Appeals in Mashaud v. Boone. The result (go to 50:50 mark) is 26 minutes of rich discussion about the First Amendment and its limits.
 
The court’s en banc hearing examines the District of Columbia anti-stalking statute that makes it a crime to (among other things) “directly or indirectly … in person or by any means, on two or more occasions” communicate “about another individual” where the speaker “should have known” that communications would cause “significant mental suffering or distress.”
 
Judge Catherine Friend Easterly noted that this provision could apply to “every high school student in the District of Columbia,” to journalists and even to the court itself, since the court’s opinions often publicize unpleasant facts or allegations, thus causing significant emotional distress.
 
The facts of Mashaud are indeed emotional. A distraught husband learned that his wife, who worked at a firm as an intern, had an affair with a superior. The husband informed the company’s HR department about the extramarital affair, made posts on Facebook, and emailed the superior’s colleagues, family, and friends about it.
 
Volokh, Protect The 1st Senior Legal Advisor, argued that to avoid “overbreadth” and “vagueness” the court should limit the law to speech that fits within First Amendment exceptions long recognized by courts – such as fighting words, obscenity, threats, and fraud. To this he might also add narrow categories of highly sensitive personal information, such as Social Security numbers or where one’s children go to school.
 
Volokh cited Organization for a Better Austin v. Keefe, in which the Supreme Court reversed a lower court ruling on First Amendment grounds. In that case, the Court allowed civil rights activists to distribute leaflets with a realtor’s phone number and urged people to call him to complain about his practices. Given that precedent, how could something as vague and broad as the DC statute stand?
 
Judge Easterly asked Volokh why the court should recognize these exceptions instead of just sending the whole section of that law regarding speech back to the DC council to revise. Volokh, happy to welcome that idea, noted that if the court wasn’t going to void that section of the law, it should at least limit its provisions to these well-established exceptions.
 
Volokh’s section of the oral arguments ends with a fascinating discussion about the enduring strength of the First Amendment despite the fact, Volokh noted, that the amendment is itself vague.   

​A federal district court this month protected the right of physicians in California to opt out of participating in assisted suicide if they have religious or ethical objections to the practice. This ruling highlights the need for responses to a troubling trend by state governments from California to Maine to steamroll the First Amendment’s guarantee of the free exercise of religion.
 
Gov. Gavin Newsom last year had updated California’s six-year-old euthanasia law to reduce patients’ wait times and streamline the documentation of their cases under the End of Life Option Act. While the law had a clause that doctors “shall not be required to participate,” physicians were still getting caught up in a requirement for them to “document” a patients’ request to die, and to “educate” them in the procedure and its prescribed pharmaceuticals.
 
The court sided with the Christian Medical and Dental Association by issuing a preliminary injunction preventing California from forcing physicians to participate in these aspects of assisted suicide. The court based its ruling on the provision’s likely violation of physicians’ First Amendment rights.
 
“Our clients seek to live out their faith in their medical practice, and that includes valuing every human life entrusted to their care. Participating in physician-assisted suicide very clearly would violate their consciences,” said Kevin Theriot, senior counsel of the Alliance Defending Freedom, who is representing CMDA.
 
This preliminary injunction should become a permanent rule. First Amendment advocates must continue to be wary of rising anti-religious attitudes in some states’ policies.

​The Protect the First Foundation filed a motion today asking the District of Columbia Court of Appeals to hear oral argument from famed legal scholar Eugene Volokh in favor of an aggrieved husband who took to social media to spread an accusation of adultery against his spouse and her superior at work.
 
District of Columbia law defines the jurisdiction’s stalking statute to make it a crime to “directly or indirectly … in person or by any means, on two or more occasions” to communicate “about another individual” where the speaker “should have known” that such communications would cause “significant mental suffering or distress.”
 
A lower court ruling from Mashaud v. Boone, if extended, would criminalize the speech of virtually every news outlet, social media post and gossip-prone human being inside the boundaries of the District of Columbia. Opposing counsel has consented to PT1st Foundation’s motion, with the stipulation that time be allotted to respond to Volokh’s argument.
 
If the motion is granted, Protect The 1st looks forward to reporting what this clash will reveal about the First Amendment implications of D.C.’s stalking statute.