​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.