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.

​Protect The 1st has long followed a First Amendment legal struggle between the Orthodox synagogue Young Israel of Tampa and the Hillsborough Area Regional Transit Authority (HART). That public authority had rejected Young Israel’s efforts to place advertisements for its “Chanukah on Ice” event on HART vehicles and bus shelters. The U.S. Court of Appeals for the Eleventh Circuit has now weighed in, permanently enjoining HART’s policy prohibiting ads that “promote a religious faith or religious organization.”
 
This case is important on multiple fronts. First, HART’s policy represents unconstitutional – and unreasonable – viewpoint discrimination because it bans religious speech on the sole basis of its religious character. It presents the troubling implication that if we can ban religious advertisements in public transit areas solely because they are religious, what’s to stop local governments from banning religious speech in public parks or other long-observed public venues of free speech?

Further, the case represents a milestone in First Amendment jurisprudence because it has resulted in a permanent injunction on continued implementation of the policy as written. As we wrote in our amicus brief:
 
“First Amendment rights are fundamental rights essential to every other form of freedom. As a result, First Amendment rights warrant special protection. Because courts cannot enjoin conduct and do not ‘strike down’ unconstitutional laws, a court cannot adequately protect First Amendment interests without including prohibitions against future illegal conduct in its injunction.
 
“Without such preventative relief, governments would be free to repeat the same constitutional violation in the future. Any resolution of this case that fails to prevent future harm does not adequately vindicate the First Amendment.”
 
Earlier, a district court had come down on the side of Young Israel, issuing a permanent injunction forbidding HART from “rejecting any advertisement on the ground that the advertisement primarily promotes a religious faith or religious organization.” On appeal, the Eleventh Circuit likewise upheld that permanent injunction, though on slightly different grounds, reasoning that “….HART’s policy, even if viewpoint neutral, is unreasonable due to a lack of objective and workable standards.”
 
Indeed, the court found that HART has “no specific training or written guidance to interpret its . . . policy.” Internal review of religious advertisements is subject to the whims of the reviewers, and HART makes no attempt to inform its employees of any “workable norms” that might help them make an objective determination of the policy’s application. The Eleventh Circuit’s ruling thus “‘means that there is no circumstance in which this particular ban on [religious] advertising could ever be lawful.’”
 
Presumably, HART could attempt to come up with a narrowed policy in the future. For now, we are pleased with and applaud the appellate ruling, which permanently protects Young Israel’s First Amendment rights vis à vis this policy – now and into the future.

​“The First Amendment guarantees the public a qualified right of access to judicial proceedings and documents that is rooted in the understanding that public oversight of the judicial system is essential to the proper functioning of that system and, more generally, to our democratic system of self-governance.”

A hearing last week before the Fourth Circuit Court of Appeals includes this quote from an amici brief by the Reporters Committee for Freedom of the Press and 38 other media organizations including the Associated Press, Atlantic Monthly Group, Axios, McClatchy, the National Press Club, the New York Times and The Washington Post. At issue is Virginia’s Officer of the Court Remote Access (with the charming acronym of OCRA) system, which allows attorneys and certain government agencies online access to non-confidential civil court records from participating circuit courts in the state (105 courts out of 120 in the Commonwealth).

Those not allowed online access to court records through OCRA include, well, everyone else – but most notably members of the press, who are forced to travel to each circuit court individually, in person, during weekday business hours in order to obtain documents and properly report on proceedings of public concern.

Virginia’s practice stands in contrast with the policies of at least 38 other states that allow unfettered online access to court records for all members of the public.

Accordingly, one media outlet, Courthouse News Service, filed a complaint in the U.S. District Court for the Eastern District of Virginia against a Virginia court clerk and the administrator of OCRA, alleging that the “Non-Attorney Access Restriction” constitutes an unconstitutional speaker-based restriction on speech.

Although the district court initially rejected the defendants’ motion to dismiss, it ultimately granted summary judgment, finding that the attorneys-only rule was a content-neutral time, place, and manner restriction and thus did not require a strict scrutiny analysis. Courthouse News subsequently appealed to the Fourth Circuit.

The defendants argue that limiting online access to lawyers and certain government agencies allows the courts to better prevent against fraud and misuse of “private, sensitive information let out into the world and limiting the potential for widespread data harvesting which is often done by bots.”

On its surface, this seems a noble argument, but it fails to consider that: 1) the information online is already non-confidential in nature, with any sensitive information required to be redacted by filers of the documents; 2) any member of the public can already access these documents in person; and 3) openness has worked well for the 38 other states that have functional, non-compromised online systems in place that allow widespread public access.

Protect The 1st is particularly sensitive to the protection of online data – but, as the amici point out, Virginia’s argument is speculative at best, showing no evidence of data harvesting by bots or anyone else. Restricting access to OCRA based on assumptions about how certain non-favored speakers may use that information is plainly not content-neutral. Instead, as amici contend, it “amounts to unconstitutional speaker-based discrimination that demands strict scrutiny.”

Further, as other courts show, less restrictive means of protecting information in court documents obviously exist – certainly less restrictive than denying access to public documents.
Most importantly, fundamental press freedoms are at stake here. “…[I]n denying the press and the greater public access to OCRA,” amici write, “the Non-Attorney Access Restriction infringes the public’s presumptive constitutional right of contemporaneous access to civil court records.”

Journalists depend on remote, online access to report on cases of public concern in a timely manner. “If not reversed,” the brief declares, “the District Court’s order will hamper the ability of the news media to report on court proceedings of public interest in Virginia and around the country.”
​
Courthouse News Service, the Reporters Committee for Freedom of the Press and their fellow amici are right in urging the Fourth Circuit to overturn the lower court’s grant of summary judgment in this case. We’ll be following future developments closely.

On either side of the abortion issue, advocates and legislators have become so entrenched that they often lose sight of the constitutional forest for the trees. Consider two cases out of Colorado and New York that illustrate the lengths to which some will go to restrict speech about any choice they don’t like.
 
In April, we wrote about a Colorado law restricting the ability of physicians to discuss a treatment for women who are having second thoughts about a chemically induced abortion. That law limits prescribing progesterone, a popular method of reversing a chemical abortion. It forbids physicians from even informing pregnant women that such a treatment exists.
 
It’s essentially the inverse of legislative proposals in red states that would permit civil actions against anyone informing women about abortion options in other states. At Protect The 1st, we oppose any effort to gag physicians and other health care providers from informing patients about treatment options – particularly when it conflicts with closely held religious beliefs.
 
Such was the case with Bella Health, a Catholic healthcare clinic in Colorado that offers life-affirming care to pregnant women (among others). That includes offering progesterone.
 
With help from the Becket Fund, Bella Health sued the State of Colorado in federal court. Bella Health has now been granted a preliminary injunction barring implementation of the law and allowing the clinic to continue its work. U.S. District Court Judge Daniel D. Domenico wrote:
 
“There is no question whether [the law] burdens Bella Health’s free exercise of religion. It does. Bella Health considers it a religious obligation to provide treatment for pregnant mothers and to protect unborn life if the mother seeks to stop or reverse an abortion.”
 
Domenico further criticized the state for failing to even attempt to make the case for a compelling government interest, which is necessary for overcoming a strict scrutiny review. The fact is, which Domenico seemingly recognized, the law was a nakedly partisan response to recent developments on the national stage – an effort to punish those on the other side of this contentious issue by trampling over their First Amendment rights.  
 
In a similar case out of New York, the state passed a law in 2022 authorizing the New York State Department of Health to conduct a study on “limited service pregnancy centers on the ability of women to obtain accurate, non-coercive health care information and timely access to a comprehensive range of reproductive and sexual health care services.”  (“Limited service pregnancy” centers is how the state describes clinics that do not offer abortion services.)
 
The statute further permitted the state to demand “data and information” from any center that does not offer abortion services or referrals. That included Sisters of Life, a Catholic community of nuns who offer holistic care for women in crisis, often providing housing, maternity clothes, baby formula, and other necessities. Sisters of Life sued to overturn and enjoin enforcement of the law, rightfully concerned about the vast amount of sensitive personal data that would have be turned over – including, according to the complaint, “organizational funding; membership in umbrella organizations; services provided and most frequently sought; the number of women who access services, the geographic regions in which each woman resides, and ‘basic demographic information about each woman, including race, age, and marital status.’”
 
In more good news for the First Amendment, the Sisters dropped their lawsuit after reaching an agreement with the state stipulating that the state will not “take any enforcement action of any kind against Plaintiff based on Plaintiff’s nonresponse to or noncompliance with any survey, document request, or information request of any kind authorized by or issued by Defendant.” It’s a total surrender on the part of New York, which seems largely embarrassed by the whole ordeal.
 
State attorneys should be embarrassed. Regardless of your views on abortion, passing coercive laws to shut down speech and punish religious organizations makes a farce of the First Amendment. And while we should celebrate these victories, we must also remember that such threats to our foundational rights remain ever present – coming from the right as well as the left.

Last year, the Protect The First Foundation filed an amicus brief urging the Ninth Circuit Court of Appeals to hear the plight of the Yakima Nation and the Confederated Tribes of Grand Ronde. These two Native American groups sued when the federal government widened U.S. Highway 26 in Eastern Oregon, demolishing an ancient stone altar and grove of trees sacred to the religion of these Americans.
 
The U.S. District Court in Oregon had first found that the U.S. Federal Highway Administration had not violated the religious rights of the tribes under the Religious Freedom Restoration Act (RFRA). A Ninth Circuit Court panel further did not see that it had the authority, or a need, to attempt remediation. Compounding injury with insult, the Ninth Circuit ruled the government was not responsible for the destruction of the sacred site and dismissed the case as moot. Accordingly, Protect The 1st, along with the Jewish Coalition for Religious Liberty, the Sikh Coalition, and the American Islamic Congress, petitioned the U.S. Supreme Court to reconsider the matter.
 
Perhaps not wanting to face a High Court notably protective of the First Amendment and religious expression, the federal government quickly agreed to a settlement. The government will replant the grove of native trees, pay for the reconstruction of the sacred stone altar, and recognize the historic use of the site by Native Americans. The restoration of the sacred site is set to be completed by spring 2024. The good news comes from the Becket Foundation, which helped the tribes file their petition.
 
“Our nation has a long, dark history of needlessly destroying Native American sacred sites without consequence,” said Luke Goodrich, Vice President and Senior Counsel at Becket. In a thread on X (Twitter), Goodrich said, “The government can never fully undo the damage it caused in this case. But this agreement is one step in a better direction--allowing these tribal members to resume religious practices that the government had taken away.”
 
The stunning about-face comes despite the government’s consecutive wins in lower and appellate courts. Perhaps the government took note that Justice Neil Gorsuch has ruled in favor of Native American tribes in nearly a dozen cases, often casting his vote to give the Court’s liberal wing a rare majority.
 
The settlement comes as other cases involving Native American land are still pending. The Ninth Circuit is still considering Apache Stronghold v. United States. In that case, the federal government is seeking to give away another Native sacred site to a multinational mining giant which plans to turn the site into a copper mine. 
 
Protect The 1st congratulates the Yakima Nation and the Confederated Tribes of Grand Ronde as well as the Becket Foundation for their victory. The religious liberty protections of the First Amendment apply to all Americans, but most especially to religious minorities more vulnerable than faiths with many adherents.
 
We hope this settlement will send a message to careless government bureaucrats to be more respectful of Native American religious sites. We especially hope this same change of heart will also come for the Apache and their case now before the Ninth Circuit.

​In October, famed legal scholar and law professor Eugene Volokh demonstrated to an en banc hearing of the highest court in the District of Columbia that a Washington, D.C., anti-stalking statute that outlaws communications that inflict “significant mental suffering or distress” is overbroad, and thus violates the First Amendment.
 
Today, the D.C. Court of Appeals issued an opinion in Mashaud v. Boone in agreement with Volokh, who represented Protect The 1st as an amicus in this case. The court also agreed with Volokh’s contention that the court should narrow the law to speech that fits within First Amendment exceptions long recognized by courts – threats, obscenity, defamation, fraud, incitement, and speech integral to criminal conduct.
 
The law in this case, D.C.’s anti-stalking statute, “prohibits any speech that one should know would cause another to feel ‘seriously alarmed, disturbed, or frightened” or suffer “emotional distress.” The court vacated a lower court ruling that held an aggrieved husband liable for emails and social media posts that embarrassed a man who had conducted an extramarital affair with his wife.
 
The court based its reasoning in part on demonstrations by Volokh, Protect The 1st, and other amici who “argue the statute is constitutionally overbroad and would need to be struck down if it is not susceptible to a narrowing construction.” The court found that emotionally distressing speech as a category could subsume much speech that is necessary:
 
“Doctors deliver life-shattering prognoses that surely send reasonable people to suffer emotional tailspins of distress. Spouses knowingly inflict emotional distress by revealing longstanding paramours and demanding divorce. Police officers deliver news of loved ones having been killed. Judges pronounce death sentences. Employers tell staff that they are fired. They all know, or should know, the extraordinary distress their messages bring, and so fall within the statute’s prohibitions. Distressing speech is an important and often valuable part of life.”
 
The court turned to political communication at the highest rung of First Amendment-protected speech. Activists, from advocates of animal rights to the pro-life position on abortion, often hurl insulting words or graphic images. “Both speak on issues of public concern and are therefore entitled to the strongest First Amendment protections” despite the emotional distress such statements and images may inflict. Thus, the court reasoned, “a statute that prohibits speech indiscriminately based solely on its propensity for causing such distress is a constitutional nonstarter.”
 
Perhaps the court’s take on speech can be reduced to a quote from a 1973 U.S. Supreme Court decision, “the First Amendment needs breathing space.”
 
As Volokh has pointed out, the court did not strike down the D.C. law, but narrowed it to those discrete categories of speech that fall outside the scope of the First Amendment’s protection.
 
“We are overjoyed at this opinion from the Court of Appeals,” said Gene Schaerr, general counsel of PT1st. “We are proud to have been ably represented by Eugene Volokh and to have help vindicate the First Amendment’s protection against any laws that encroach on the freedom of speech.”

​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.