Protect The 1st has long supported the people of the Apache Stronghold as they’ve faced the gut-churning prospect that the government will allow a foreign mining consortium to transform their ancient site of worship into a giant crater as long as the Washington Mall and deep as two Washington Monuments.
Over the summer, a three-judge panel of the Ninth Circuit Court of Appeals issued a ruling that refused to protect Oak Flat, a large swath of the Tonto National Forest that the federal government recognized in a 19th century treaty as land held sacred by the Apache. The court ruled that the transfer of this land to a copper mining consortium resulting from a midnight deal in Congress did not substantially burden the First Amendment right to religious exercise of the Apache. Protect The 1st objected that the absolute destruction of a religious minority’s site of worship, the Apache’s equivalent of the Vatican or Temple Mount, was a “substantial burden” of the right of religious freedom guaranteed by the First Amendment and the Religious Freedom Restoration Act (RFRA).
In our view, the Ninth’s ruling would not only destroy the centerpiece of one religion, but would erode all religious protections guaranteed by RFRA. We weren’t alone in our thinking: Judge Marsha Berzon of the Ninth Circuit dissented, called her peers’ ruling “absurd,” “illogical,” “disingenuous,” and “incoherent.”
In August, the judges of the Ninth Circuit called for a vote to rehear the case en banc, in front of a full court of 11 judges. Such requests for a rehearing are exceedingly rare, limited to about one-half of one percent of cases. Legal observers welcomed the maneuver as a chance for dissenting judges to get their opinions on record as fodder for a bid for certification for oral argument before the U.S. Supreme Court. Few legal observers gave Oak Flat a realistic chance for an actual rehearing.
The Apache people, undaunted, responded in a positive and hopeful way by organizing a caravan to San Francisco to urge the court to go ahead and reconsider its ruling.
On Thursday, the full court voted to grant Oak Flat a full en banc rehearing.
Gene Schaerr, PT1 general counsel, congratulated the Becket law firm for its strong representation of the Apache.
“This is a very encouraging day for religious liberty, the Religious Freedom Restoration Act, and the rights of religious minorities in America,” Schaerr said. “It is remarkable that the Ninth Circuit itself sought this review of its decision.
“We congratulate the Ninth for this bold decision and look forward with enthusiasm to supporting the Apache’s case.”
Attorney General Merrick Garland this week formalized a policy he announced early in his tenure that restricts the use of legal tools by federal prosecutors to force journalists to divulge their notes and sources.
This new rule precludes “the use of compulsory legal process, including subpoenas, search warrants, and certain court orders for the purpose of obtaining information from or records of members of the news media.”
Such protections are sorely needed. We’ve seen federal intrusion into the records of the AP, CNN, The Washington Post, The New York Times, and even morning raids to confiscate the phones of activist journalists. Over the years, journalists have been held in contempt and jailed for refusing to reveal their confidential news sources. Most U.S. states have “press shield” laws that protect journalists’ sources and notes, with reasonable exceptions. But the federal government has no such law.
It is heartening to see the Attorney General make this directive a formal rule. We should remember, however, that Department of Justice rules can change with the next Attorney General and the next administration — or even if the current Attorney General changes his mind.
We value the ability of journalists to shield confidential sources because so many times revelations from whistleblowers have revealed wrongdoing or dysfunction that the American people need to know about. Recognition of a shield law as essential to freedom of the press explains why Reps. Jerry Nadler and Jim Jordan, Chair and Ranking respectively of the House Judiciary Committee, led a bipartisan group to vocally support the Protect Reporters from Exploitive State Spying (PRESS) Act, introduced by Sen. Ron Wyden (D-OR) and Rep. Jamie Raskin (D-MD). The PRESS Act passed the House with unanimous support in September.
Attorney General Garland deserves our gratitude for pushing this issue forward and underscoring its importance. All that’s left is for the Senate to seal the deal and join the House in sending the PRESS Act to the president’s desk for signature.
The U.S. Senate today rejected the Disclose Act, a bill that would have violated the privacy of donors and exposed them to threats against their livelihoods, businesses, and very lives.
The proponents of the bill did not lack for colorful (or actually, colorless) metaphors. Proponents have succeeded in persuading the media to call private, confidential donations to political causes as “dark money.” Sen. Sheldon Whitehouse (D-R.I.) called these donations “a dark octopus of corruption and deceit.” Such funds, said Majority Leader Chuck Schumer (D-NY) are “drowning out the views of citizens” and “disfiguring our democracy.”
This view overlooks the actual threat of disfigurement in this age of cancel culture, doxing, and the normalization of taking protests (and sometimes guns) to the homes of officials, including Supreme Court justices.
Consider what happened in 2009 after California donors who had given $100 or more in favor of a statewide amendment on marriage had their identities disclosed. Common web tools revealed their home addresses and other personal information. With their privacy exposed, donors experienced intimidation, hostility at the workplace, vandalism, slurs, and violence. Donors from the Church of Jesus Christ of Latter-Day Saints were systematically targeted by one website. A Lutheran pastor was threatened with gun and firebomb violence.
The power of doxing can work against people of all political persuasions. A website called the Nuremberg files identified roughly 200 abortion providers, along with their personal information, home addresses, phone numbers and photographs. Some physicians targeted in this way were forced to resort to wearing disguises and spending thousands of dollars on home security systems.
Respect for donor privacy has a venerable history based on necessary concerns. In 1958, the U.S. Supreme Court protected the anonymity of donors to the NAACP from being reviewed by the State of Alabama, no doubt protecting those donors from harassment and worse.
Despite the partisan framing and party-line vote on this bill in this election season, people of all ideologies and both parties continue to have a stake in donor privacy. ACLU, hardly a bastion of corporate apologists, has opposed past versions of the Disclose Act. The donors at risk today may be well-heeled or not, but if you think the threat of violence, economic retaliation and social intimidation is not real, you’ve not been paying attention to the current state of the culture.
Today’s vote was a positive development. Next perhaps we can persuade the media to begin referring to the issue as one of “donor privacy” instead of “dark money” surrounded by evil octopi.
Spotlight Now on SenatE
The U.S. House of Representatives passed the Protect Reporters from Exploitative State Spying (PRESS) Act with unanimous, bipartisan support today.
This bill, long supported by Protect The 1st and civil liberties sister organizations, would protect journalists and their sources by granting a privilege to protect confidential news sources in federal legal proceedings. Former Rep. Rick Boucher (D-VA), PT1st Senior Policy Advisor and the original author of an earlier version of this bill, said:
“Kudos to Rep. Jamie Raskin for shepherding this bill through the House in such a busy season. The PRESS Act passed unanimously today because courts continue to hold journalists in contempt and even jail them for refusing to reveal their confidential sources. The House today made a bold statement that this is not acceptable. I am heartened to see such a strong, bipartisan stand for a free and unintimidated press.”
PT1st general counsel Gene Schaerr, said:
“Today’s approval reflects the common sense behind this bill. Passage of this bill with unanimous, bipartisan support is a reaffirmation of the First Amendment’s guarantee of protection for a free press. If such a law works well for the vast majority of states, there is no excuse for the federal government to be so far behind the times.”
Former Rep. Bob Goodlatte who served as Chairman of the House Judiciary Committee, and now as PT1st Senior Policy Advisor, said:
“When a bill passes so easily after being praised by two of my former colleagues, House Judiciary Committee Chairman Jerry Nadler and Ranking Member Jim Jordan, that tells you something about the need for this bill to become law.
“The question now is will the U.S. Senate respond to the enthusiastic, bipartisan support displayed by the House? This bill has been sponsored in the past by now-Senate Majority Leader Chuck Schumer and Sen. Lindsey Graham. Enacting this bill into law would be a positive message that every senator can take home.”